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defense (Bliss v. Prichard, 67 Mo., loc. cit. 191), yet the better doctrine seems to be that the defense of laches is one of which it is not necessary to take advantage by the pleadings; and, if the case as it appears at the hearing is liable to such objections, the court may, and usually will, remain passive, and refuse relief, and decline to entertain the suit. 12 Ency. Pl. & Pr. 829, and cases cited; Murphy v. De France, 105 Mo., loc. cit. 69, 15 S. W. 949, 16 S. W. 861, et seq. But there is another proposition that must be reckoned with in this connection, viz., that laches is a question of fact on the evidence, determinable upon the particular facts and circumstances of the case. Pike v. Martindale, 91 Mo., loc. cit. 285, 1 S. W. 858. In this particular courts treat laches the same as they do the kindred question of negligence; that is to say, there is no castiron rule for determining what negligence is, or what laches is, but the matter is necessarily left open, so that the court may determine such question from the circumstances of each case and the immediate surroundings of the parties. We must avow a Judicial indisposition to apply the doctrine of laches with close particularity to the dealings of an old mother with her confidential business manager, a son, with whom she resided, and on whom she depended for the solaces of filial ministrations. We are inclined to the notion that a court of conscience would better subserve the interests of domestic happiness and welfare by refusing to apply the doctrine of laches to relations and dealings of the kind here indicated, except in a pronounced and unequivocal case, and such a case is not the case at bar; and it goes without saying that, if laches be not allowed as a defense against the mother, it is unavailing in the case for any purpose, since it may not be imputed to plaintiffs, who sued timely upon their ancestor's death.

The record does not satisfy us of the existence of the mortgage for $3,000 pleaded in the petition. If proof thereof was offered, it has escaped us, although the case was submitted on the theory that it existed. The chancellor should take proof on this issue of fact. If such mortgage exists, it should be satisfied solely out of the interest of William Smith in the real estate, if the same be of sufficient value to pay it off. Neither can we say that the executory contract of Meacham looking to the purchase of the land will be consummated. It may be it cannot be specifically enforced. Proof on this question should be taken by the chancellor. Nor are we satisfied at this time to grant a partition and distribution of the proceeds of the Meacham sale, should they be paid into court. Such partition and distribution should await an administration upon the estate of Rebecca Smith, because the interests of her children by descent cast are subject to the payment of her debts; and

while that question is not here, and therefore we do not pass upon it, yet it may be that respondent William Smith, at least for funeral expenses of his mother and her interment in Illinois, may be able to establish legal claims against her estate.

The cause is reversed and remanded, with directions to the court below to take proof on the present existence of a mortgage on the whole tract; to decree that the mortgage, if existing, be paid by William Smith, and, as between him and the other heirs, should become a lien on his interest in the real estate, and be satisfied therefrom in the first instance; to decree, further, that the heirs of Rebecca Smith, including the respondent William, are entitled to an undivided five-sixteenths of the land described in the petition; and to make such decree in regard to the Meacham sale as the facts warrant; and to otherwise proceed in accordance with this opinion. All concur.

CHAMPAGNE v. HAMEY. (Supreme Court of Missouri, Division No. 2. June 20, 1905.)

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1. RAPE ACTION FOR DAMAGES INSTRUCTIONS.

In an action for damages owing to plaintiff's having been ravished by defendant and caused to become a mother, it was error to refuse to instruct that if at the time of the assault or within a reasonable time thereafter plaintiff had an opportunity to make an outcry and she did not do so, and did not do so as soon as an opportunity offered, or at any time prior to the birth of her child she did not complain of the assault, and that she continued on friendly relations with defendant, the jury should take such facts into the case in determining whether the defendant did have carnal knowledge with plaintiff by force, and that if the defendant did not have sexual intercourse with plaintiff, or even if he did with her consent, he was not liable.

2. APPEAL-REVIEW-ARGUMENT OF COUNSEL -BILL OF EXCEPTIONS.

Alleged erroneous argument of counsel cannot be reviewed on appeal unless timely objections and exceptions are made and the same appear with the matter complained of in the bill of exceptions.

3. RAPE NECESSITY FOR CORROBORATION OF PROSECUTRIX.

Corroboration of prosecutrix is not necessary to make out a charge of rape either in a criminal or a civil case.

4. RAPE-EVIDENCE-SUFFICIENCY.

In an action for damages owing to plaintiff's having been ravished by defendant and caused to become a mother, evidence considered, and held insufficient to show that any rape was committed.

Appeal from Circuit Court, Buchanan County; A. M. Woodson, Judge.

Action by Jessie Champagne against John Hamey. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This cause is here upon an appeal from a judgment against the defendant in the Buchanan county circuit court. The cause of action upon which this judgment rests is thus stated by the plaintiff:

"Plaintiff, for cause of action, states that she is an infant of the age of 17 years; that she was on the 7th day of June, 1899, just a few days past 16 years old; that her mother is dead, and that Mrs. Erwin was her foster mother and took her when she was about two years old; that she lived with her foster mother until the latter part of March, 1800.

"That the defendant is the son-in-law of her foster mother, and married her foster sister; that her foster mother, defendant, and her foster sister live almost in the same yard; that during all her lifetime plaintiff bad at times helped her foster sister and worked for her sister, and looked to the defendant and plaintiff's foster sister for protection, and was given by consent under their control.

"That her foster mother lived on the property belonging to the defendant, and relied on defendant for support; that the house in which the plaintiff and her mother lived was close to the house in which defendant and his wife, plaintiff's foster sister, lived. "Plaintiff further states that in the evening, on or about the 7th day of June, 1899, defendant came to the house where plaintiff lived with her foster mother, and found plaintiff alone, and found plaintiff's foster mother was away from home; that defendant, finding plaintiff alone, caught plaintiff and threw plaintiff on the bed, and took a large pillow and placed it over plaintiff's face, so that plaintiff could not holloa, and threatened plaintiff, and forcibly ravished plaintiff and had intercourse with plaintiff; that plaintiff fought until she was exhausted, but that defendant accomplished his purpose; that on account of said aforesaid act plaintiff became pregnant with child, and on the 3d day of March, 1900, a child was born, being the child of defendant.

"Plaintiff further states that on account of said aforesaid act of defendant plaintiff's life is ruined, and that plaintiff is disgraced, and that she is compelled to support her child, all of which is caused by said defendant by his criminal acts as aforesaid; wherefore, plaintiff says she is damaged in the sum of twenty thousand dollars. Wherefere plaintiff prays judgment in the sum of twenty thousand dollars ($20,000), and for such other and further relief as the court may deem proper."

The answer was a general denial.

The facts upon which this judgment is Bought to be supported were substantially as follows:

The plaintiff testified that she was 16 years of age in May, 1899. The alleged assault occurred June 7, 1899. Her mother having died, Mrs. Erwin, the defendant's mother-in-law, took her to raise when she was two years old, and from that time on she lived with Mrs. Erwin in a two-story house on a farm belonging to the defendEnt's father. The defendant was raised on

the same farm. He was a married man, 36 years of age, and his family consisted of his wife and children, the oldest 11, and the youngest 3 years old at the time of the alleged assault. The defendant, his wife and children, the defendant's father and the plaintiff's father, lived in a two-story house on the same farm in the same yard, about 80 feet from the house in which Mrs. Erwin and plaintiff resided.

The testimony of the plaintiff is that on the evening of June 7, 1899, she was alone in her home. About 8:30 o'clock she was standing in the front room combing her hair. It was dusk, and getting dark. Some one entered and threw his arms around her waist and kissed her. She jerked free, and, turning, recognized the defendant. She ran towards the door, but before she could escape he caught her again, dragged her to a bed in the room, and threw her upon it. She struggled to get away from him, but she could not. She tried to scream, but he forced a pillow over her mouth and prevented her. She testified that she resisted, but he raised up her clothes and raped her; that she fainted, and when she regained consciousness the defendant was standing by the side of her bed. He helped her up, saying, "My God, Jess, don't tell my wife," but she says she didn't say that she would or that she would not. Then he went over to his house, while she went out on the porch and sat down. She testified that at the time she was a pure, innocent girl, a few months past 16 years old, strong and healthy; that she had never had intercourse with any man. Upon cross-examination plaintiff testified that the doors and windows to her home and defendant's home were open, and that at the time her foster mother, her father, defendant's father, and his wife were in the other house in the same yard, not more than 90 feet away.

The plaintiff made no complaint that she was under restraint or influence of threats, or that she apprehended any violence from the defendant. It further appears that she made no complaint or outcry during the struggle before the pillow was placed over her mouth or after its removal, nor was there any indication or exhibition of anguish on the part of the plaintiff after it is claimed that this outrage was perpetrated upon her, but it does appear that she went out on the front porch and sat down to cool off. When the inquiry upon cross-examination was made of the plaintiff as to why she didn't make an outcry after the pillow was removed from her mouth, her reply was that "she didn't know." She further testified that the defendant held the pillow over her mouth with one hand and she had hold of his other arm with both of her hands, and, upon inquiry as to how the defendant effected an entrance, she replied she didn't know, that she supposed she fainted.

There is an entire absence of any testi

won't give you anything. Q. Then what did she say? A. Well, she didn't say much of anything. I asked her if she had told her father, and she said 'No'; and I said, 'Let's tell him.' We walked up to where he was, she on the inside of the fence and me on the other side. I walked up and told him what she had said. He said she ought to know. He didn't know. He couldn't tell. She lived there till March or April, 1900. I saw her over at our house several times. I always spoke to her, and she to me. We were just as friendly as we had always been, and I didn't notice any difference in her conduct. I never had any idea that I was accused of having anything to do with her."

mony as to the result of the outrage charged | thought you were begging, but this way I to have been committed upon plaintiff. There was no testimony that any of her clothing was disordered or torn; there was no evidence of any indication of any laceration of her private parts, or that she bled, or that her person was scratched or showed any signs of violence; and it may be added that there is an absence of any testimony showing the physical condition and mental anguish which would ordinarily follow. It is also shown by the evidence that her foster mother came home 10 or 15 minutes after the occurrence, and that plaintiff made no complaint to her, nor were there any signs or indications, as testified to by her mother, that she had been outraged. Plaintiff made no complaint to her father, to the defendant's wife or his father, nor to any other person. Her conduct and actions toward the defendant subsequent to the alleged commission of the outrage upon her person were the same as before the assault was made. They frequently met, and were upon friendly terms. It also developed that she never spoke to the defendant about the commission of this assault until about three months after her child was born. Then, she says, for the first time she mentioned it to him. She went out in the field where he was ploughing and asked him to support the child. He refused. Then she said to him, "This is your child," and he replied, "Oh, no, Jessie, you can't come that." And then, according to her own story, he said to her, "Did you tell your father about this?" and she said, "No." "And he said, 'Well, let us go right over here and see your father now,' didn't he? A. That is what he said; yes, sir. Q. And he walked over there with you, and you saw your father? A. Yes, sir. Q. With you? A. Yes, sir. Q. This man that ravished you? A. Yes, sir."

Mrs. Erwin, the plaintiff's foster mother, testified that after the date of the alleged assault the plaintiff and defendant were just as friendly as they were before; that she noticed no difference in them, and they continued to live as one big family; that the plaintiff never mentioned the occurrence to her; and that at no time upon her return home did she find the plaintiff in an excited condition.

The defendant denied that he had ever had sexual intercourse with the plaintiff, or that he ever knew or heard of any claim that he had been intimate with her until about three months after the child was born. Then one day she came to him in the field where he was ploughing. The plaintiff's father was ploughing in the same field "about 40 rows away." She first said to defendant, "I came to see how much you would give to help support that child." She hesitated for a moment. The defendant thought she was "begging." He made no reply. Then she said, "You know it is yours." To which the defendant replied: "You know it is not; I

The defendant and his father both testified that on the evening of June 7th, from the time the defendant came in from the field about 7 o'clock until about 9, they were both at home. The defendant and his father both refreshed their memories as to the fact that they were at home on the evening it was alleged this outrage occurred by reason of some insurance policies having been procured by the father on that evening, and the date of the policies and check and receipt given in respect to them were introduced in corroboration of their testimony as to what they had said in reference to being at home on that evening.

At the close of the evidence the court gave the following instructions at the request of the plaintiff:

"(1) The court instructs the jury that if you believe from the evidence that the defendant did on or about the 7th day of June, 1899, forcibly ravish plaintiff and against her will, and as a result thereof plaintiff became pregnant, and that there was a child born of said illegal act on the 3d day of March, 1900, then your verdict will be for the plaintiff.

"(2) The court instructs the jury that, if you find for the plaintiff, you will find for her in such sum as you may believe from all of the evidence in proof that she has been damaged, taking into consideration the illegal act complained of, the result of said act, the disgrace and wounded feelings of the plaintiff ; and you will find for her in such sum as you may believe she has been damaged, not to exceed the sum of twenty thousand dollars.

"(3) The jury are the judges of the evidence and credibility of the witnesses, and you may give to the testimony of any witness such weight as they may deem it entitled to under all the facts and circumstances in proof; and, if the jury believe that any witness has willfully sworn falsely to any material fact in the case, they are at liberty to disregard the whole of the testimony of such witness. And in reconciling the conflicting testimony, if there be any, the jury are not confined alone to the direct statements of the witnesses, but may take into consideration all of the facts and circumstances as shown by the evidence.

"The court instructs the jury that it is not essential to a recovery that plaintiff should ire by the direct testimony of eyewitnesses that defendant did debauch and carnally know the plaintiff forcibly and against her will; such fact may be proved by the proof of the facts and circumstances from which it may be reasonably and satisfactorily inferred If, therefore, the jury believe from all the facts and circumstances in proof that defendant did have sexual intercourse with plaintiff at about June 7, 1899, without the consent of plaintiff, and forcibly and against her will, they would be warranted in so finding, and the verdict should be for the plaintif.”

At the request of the defendant, the jury were instructed as follows:

1) You are instructed that the burden of showing by a preponderance of the evidence, to the reasonable satisfaction of the jury, that the defendant assaulted and ravished the plaintiff forcibly and against her will, is upon the plaintiff, and, unless she has done so, your verdict must be for the defendant.

2) The court instructs the jury that even though you may believe from the evidence that the defendant did have sexual intercourse with the plaintiff, yet if you believe from the facts and circumstances in evidence that the plaintiff consented to have sexual intercourse with the defendant, then the defendant is not liable in any sum to the plaintiff, and your verdict must be for the defendant. And if you believe that the defendant cd have sexual intercourse with the plaintif. then, in determining whether such intercourse was against the will of plaintiff or whether it was with her consent, you must take into consideration the reasonableness or unreasonableness, the probability or improbability, of the testimony of the witnesses, and all of the other facts and circumstances in the case.

*(3) The court instructs the jury that if you believe from all the facts and circumstances in evidence in this case that the defendant did not have sexual intercourse with the plaintiff, then your verdict will be for the defendant.

“(4) The jury are the sole judges of the credibility of the witnesses and of the weight to be given to their testimony; and, in determining such weight and credibility, you should take into consideration the probability or improbability, the reasonableness or unreasonableness, of the witness' statements, the interest, if any, which such witness has in the result of the trial, together with all the facts and circumstances detailed in the evidence."

The defendant requested the court to give the following instructions, which were reinsed:

*(a) The court instructs the jury that, under the pleadings and evidence in this case, your verdict must be for the defendant.

b) If the jury believe from the evidence

that at the time the alleged assault on plaintiff is alleged to have been committed, or within a reasonable time thereafter, the plaintiff had an opportunity to make an outcry, and that she did not do so, and did not as soon as an opportunity offered, or at any time prior to the time her baby was born, complain of the alleged assault to any person, and that she continued on friendly relations with the defendant after the date of said alleged assault, then the jury should take these circumstances into the case in determining whether the defendant did in fact have carnal knowledge of the plaintiff by force and against her will; and if you believe from all these circumstances and all the evidence in the case that the defendant did not have sexual intercourse with the plaintiff, or even if you believe that he did have sexual intercourse with her by her e sent, then the defendant is not liable in this case, and your verdict must be for the defendant.

"(c) The court instructs the jury that the burden is upon the plaintiff to establish to your satisfaction that the defendant had sexual intercourse with the plaintiff by force and against her will. And the court instructs you that in this case the law presumes that the defendant is innocent, and that he did not have sexual intercourse with the plaintiff, and before you are authorized to find for the plaintiff the evidence in favor of the plaintiff should be strong enough, in your opinion, to overcome not only the testimony and evidence offered by the defendant, including all the facts and circumstances in this case, but also the presumption which the law raises that the defendant did not commit the assault alleged in the petition."

The cause was submitted to the jury upon the evidence and instructions, as herein indicated, and they returned a verdict finding the issues for the plaintiff, and assessed her damages at the sum of $10,000. From this judgment defendant, in proper form and due time, prosecuted the appeal, and the cause is now before us for consideration.

Culver, Phillip & Spencer, for appellant. Grant S. Watkins, for respondent.

FOX, J. (after stating the facts). Numerous errors are assigned as grounds for the reversal of the judgment in this cause.

The defendant requested the court to give the following instruction, which was by the court refused: "(b) If the jury believe from the evidence that at the time the alleged assault on plaintiff is alleged to have been committed, or within a reasonable time thereafter, the plaintiff had an opportunity to make an outcry, and that she did not do so, 'and did not as soon as an opportunity offered, or at any time prior to the time her baby was born, complain of the alleged assault to any person, and that she continued on friendly relations with the defendant after

the date of said alleged assault, then the jury should take these circumstances into the case in determining whether the defendant did in fact have carnal knowledge of the plaintiff by force and against her will; and if you believe from all these circumstances and all the evidence in the case that the defendant did not have sexual intercourse with the plaintiff, or even if you believe that he did have sexual intercourse with her with her consent, then the defendant is not liable is this case, and your verdict must be for the defendant." The refusal of the court to give this instruction is one of the errors assigned by appellant as grounds for the reversal of this judgment.

In State v. Witten, 100 Mo. 525, 13 S. W. 871, an instruction substantially the same as the one refused in this cause was requested and refused, for which action of the court the judgment in that cause was reversed. Black, J., speaking for the court, said: "An outcry and resistance are important elements of evidence, and a want of these circumstances, where they may reasonably be expected, go far to disprove the charge of rape (State v. Cunningham, 100 Mo. 382, 12 S. W. 376); and a concealment of the injury, where there is an opportunity for early disclosure, may lead to a like inference. The evidence, as a whole, tends strongly to show that this is one of those cases where there has been a mutual gratification of desires and passions, and that the notion of force on the part of the man, and want of consent on the part of the woman, is an afterthought. No disclosure was made by the woman until discovered to be pregnant, and the first charge of force was made more than a year after the alleged outrage. Under these circumstances, the instruction should have been given. The judgment in the case of State v. Wilson, supra, was reversed alone because a like instruction was not given as it was asked, and we must either overrule that case or reverse the judgment in this one."

In State v. Wilson, 91 Mo. 410, 3 S. W. 870, an instruction in the following form was requested, and by the court modified as hereinafter stated, and given: "Although the jury may believe from the evidence that the defendant had intercourse with Cora Leis, yet unless that intercourse was forcible on the part of the defendant, and against the consent of Cora Leis, the jury will find the defendant not guilty; and, in arriving at a conclusion as to the question of force and consent, the facts that the said Cora Leis made no complaint at the time, or within a reasonable time thereafter, and that pregnancy followed a single sexual connection, are legitimate subjects of inquiry in determining whether there was force on the part of said defendant, or consent to the intercourse by the said Cora Leis." The court gave this instruction in a modified form by adding after the word "connection," when it

last occurs in the instruction asked, the words "in connection with the other testimony." It was ruled in that case that the instruction should have been given as requested, and that the modification of it was error, and the cause was reversed. To the same effect is the case of State v. Patrick, 107 Mo. 147, 17 S. W. 666.

In State v. Baker, 136 Mo. 77, 37 S. W. 810, an instruction similar in form to that requested in the cases herein cited was refused, and it was held not to be error; but an analysis of that case demonstrates that the action of the court was predicated upon the peculiar facts developed upon the trial. Her father was charged with the offense; she had no mother or sister near her, and was completely under the dominion of her father, and he had threatened to kill her if she divulged what had occurred. She had no female friends to whom she could talk about the outrage that had been perpetrated upon her. Upon this state of facts, the court very properly ruled that it was not error to thus refuse the instruction, and the correctness of the ruling, so far as the instructions were involved in the Patrick Case, was expressly recognized.

In Young v. Johnson, 25 N. E. 365, an instruction of the same import as the one under discussion was given, and the Court of Appeals of New York, in discussing its correctness, said: "The court, at the request of the defendant, instructed the jury, in substance, that the fact that plaintiff did not disclose the assault complained of within a reasonable time after the opportunity presented itself for her to do so was in itself a reason for impeaching the veracity of her story. It was undisputed that the plaintiff delayed disclosing to her female friends the alleged conduct of the defendant towards her until she was satisfied of her pregnancy, though she met them frequently, and under circumstances that furnished a very favorable opportunity for her to do so. This was a circumstance bearing upon the plaintiff's credibility and the general merits of her case that was proper for the jury to consider, and the charge of the court in that respect was correct. People v. O'Sullivan, 104 N. Y. 481, 10 N. E. 880, 58 Am. Rep. 530."

It is insisted by respondent that this instruction is only applicable to criminal causes; hence there was no error in the refusal in this, a civil cause. We are unable to agree with learned counsel for respondent upon this insistence. Plaintiff's cause of action is predicated upon an assault upon plaintiff with force and violence, and by such means, against her will, ravishing her. The purpose of the trial in this cause is to ascertain if it is a fact that plaintiff was forcibly ravished, and it is clear that the same purpose is sought in a trial upon a criminal charge of rape. The same evidence is admissible tending to show the commission or noncommission of the act charged. The jury are the

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