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TIONS.

defense (Bliss v. Prichard, 67 Mo., loc. cit. while that question is not here, and there191), yet the better doctrine seems to be that fore we do not pass upon it, yet it may the defense of laches is one of which it is not be that respondent William Smith, at least necessary to take advantage by the plead- for funeral expenses of his mother and her ings; and, if the case as it appears at the interment in Illinois, may be able to estabhearing is liable to such objections, the court | lish legal claims against her estate. may, and usually will, remain passive, and The cause is reversed and remanded, with refuse relief, and decline to entertain the directions to the court below to take proof suit. 12 Ency. Pl. & Pr. 829, and cases on the present existence of a mortgage on cited; Murphy v. De France, 105 Mo., loc. the whole tract; to decree that the mortgage, cit. 69, 15 S. W. 949, 16 S. W. 861, et seq. if existing, be paid by William Smith, and, But there is another proposition that must as between him and the other heirs, should be reckoned with in this connection, viz., become a lien on his interest in the real that laches is a question of fact on the evi- estate, and be satisfied therefrom in the dence, determinable upon the particular facts first instance; to decree, further, that the and circumstances of the case. Pike v. Mar- heirs of Rebecca Smith, including the retindale, 91 Mo., loc. cit. 285, 1 S. W. 858. spondent William, are entitled to an undiIn this particular courts treat laches the vided five-sixteenths of the land described same as they do the kindred question of in the petition; and to make such decree in negligence; that is to say, there is no cast- regard to the Meacham sale as the facts iron rule for determining what negligence is, warrant; and to otherwise proceed in acor what laches is, but the matter is neces- cordance with this opinion. All concur. sarily left open, so that the court may de termine such question from the circumstances of each case and the immediate sur

CHAMPAGNE v. HAMEY. roundings of the parties. We must avow a

(Supreme Court of Missouri, Division No. 2. judicial indisposition to apply the doctrine

June 20, 1905.) of laches with close particularity to the

1. RAPE – ACTION FOR DAMAGES INSTRUOdealings of an old mother with her confidential business manager, a son, with whom In an action for damages owing to plain. she resided, and on whom she depended for tiff's having been ravished by defendant and the solaces of filial ministrations. We are

caused to become a mother, it was error to re

fuse to instruct that if at the time of the asinclined to the notion that a court of con

sault or within a reasonable time thereafter science would better subserve the interests plaintiff had an opportunity to make an outcry of domestic happiness and welfare by re- and she did not do so, and did not do so as fusing to apply the doctrine of laches to re

soon as an opportunity offered, or at any time

prior to the birth of her child she did not comlations and dealings of the kind here indi- plain of the assault, and that she continued on cated, except in a pronounced and unequivo- friendly relations with defendant, the jury cal case, and such a case is not the case at

should take such facts into the case in deter

mining whether the defendant did have carnal bar; and it goes without saying that, if

knowledge with plaintiff by force, and that if laches be not allowed as a defense against the defendant did not have sexual intercourse the mother, it is unavailing in the case for with plaintiff, or even if he did with her consent,

he was not liable. any purpose, since it may not be imputed

2. APPEAL-REVIEW-ARGUMENT OF COUNSEL to plaintiffs, who sued timely upon their an

-BILL OF EXCEPTIONS. cestor's death.

Alleged erroneous argument of counsel canThe record does not satisfy us of the ex- not be reviewed on appeal unless timely objecistence of the mortgage for $3,000 pleaded

tions and exceptions are made and the same

appear with the matter complained of in the in the petition. If proof thereof was of

bill of exceptions. fered, it has escaped us, although the case 3. RAPE-NECESSITY FOR CORROBORATION OF was submitted on the theory that it existed. PROSECUTRIX. The chancellor should take proof on this is

Corroboration of prosecutrix is not necessue of fact.

sary to make out a charge of rape either in a If such mortgage exists, it

criminal or a civil case. should be satisfied solely out of the interest

4. RAPE-EVIDENCE-SUFFICIENCY. of William Smith in the real estate, if the In an action for damages owing to plainsame be of sufficient value to pay it off. tiff's having been ravished by defendant and Neither can we say that the executory con

caused to become a mother, evidence consider

ed, and held insufficient to show that any rape tract of Meacham looking to the purchase

was committed. of the land will be consummated. be it cannot be specifically enforced. Proof

Appeal from Circuit Court, Buchanan on this question should be taken by the

County; A. M. Woodson, Judge. chancellor. Nor are we satisfied at this

Action by Jessie Champagne against John time to grant a partition and distribution of

Hamey. From a judgment in favor of plainthe proceeds of the Meacham sale, should

tiff, defendant appeals. Reversed. they be paid into court. Such partition and This cause is here upon an appeal from distribution should await an administration a judgment against the defendant in the upon the estate of Rebecca Smith, because Buchanan county circuit court. The cause the interests of her children by descent cast of action upon which this judgment rests is are subject to the payment of her debts; and thus stated by the plaintiff:

It may

1o.)

"Plaintiu, for cause of action, states that ere is an infant of the age of 17 years;

the same farm. He was a married man, 36 Dat she was on the 7th day of June, 1899,

years of age, and his family consisted of Dther is dead, and that Mrs. Erwin was her je & few days past 16 years old; that her

his wife and children, the oldest 11, and

the youngest 3 years old at the time of the foster mother and took her when she was

alleged assault. The defendant, his wife atott two years old; that she lived with her

and children, the defendant's father and the

plaintiff's father, lived in a two-story house f ster mother until the latter part of March,

on the same farm in the same yard, about

80 feet from the house in which Mrs. Erwin "Tbat the defendant is the son-in-law of and plaintiff resided. ber foster mother, and married her foster The testimony of the plaintiff is that on sister; that her foster mother, defendant, the evening of June 7, 1899, she was alone and her foster sister live almost in the same in her home. About 8:30 o'clock she was Tard; that during all her lifetime plaintiff standing in the front room combing her hair. tad at times helped her foster sister and

It was dusk, and getting dark. Some one Forked for her sister, and looked to the

entered and threw his arms around her defendant and plaintiff's foster sister for

waist and kissed her. She jerked free, and, protection, and was given by consent under

turning, recognized the defendant. She ran their control.

towards the door, but before she could es“That ber foster mother lived on the prop

cape he caught her again, dragged her to a erty belonging to the defendant, and relied

bed in the room, and threw her upon it. ou defendant for support; that the house

She struggled to get away from him, but in #bich the plaintiff and her mother lived

she could not. She tried to scream, but he was close to the house

in which defendant forced a pillow over her mouth and preventand bis wife, plaintiff's foster sister, lived.

ed her. She testified that she resisted, but "Plaintiff further states that in the even

he raised up her clothes and raped her; that ing. on or about the 7th day of June, 1899,

she fainted, and when she regained condefendant came to the house where plaintiff

sciousness the defendant was standing by lived with her foster

mother, and found the side of her bed. He helped her up, sayplaintiff alone, and found plaintiff's foster

ing, "My God, Jess, don't tell my wife,” but Dother was away from home; that defend

she says she didn't say that she would or ant finding plaintiff alone, caught plaintiff

that she would not. Then he went over to and threw plaintiff on

the bed, and took a his house, while she went out on the porch large pillow and placed it over plaintiff's

and sat down. She testified that at the face, so that plaintiff could not holloa, and

time she was a pure, innocent girl, a few threatened plaintiff, and forcibly ravished

months past 16 years old, strong and healthy; plaintiff and bad intercourse with plaintiff;

that she had never had intercourse with any that plaintiff fought until she was exhaust

man. Upon cross-examination plaintif tesed, but that defendant accomplished his tified that the doors and windows to her purpose; that on account of said aforesaid home and defendant's home were open, and act plaintiff became pregnant with child, and that at the time her foster mother, her faon the 3d day of March, 1900, a child was bora, being the child or 'defendant.

ther, defendant's father, and his wife were -Plaintiff further states that on account

in the other house in the same yard, not more of said aforesaid act of defendant plaintiff's

than 90 feet away.

The plaintiff made no complaint that she life is ruined, and that plaintiff is disgraced, was under restraint or influence of threats, and that she is compelled to support her child, all of which

or that she apprehended any violence from fendant by his criminal acts as aforesaid; is caused by said de- the defendant. It further appears that she

made no complaint or outcry during the wherefore, plainti ir says she is damaged in the sum of twenty thousand dollars. Where

struggle before the pillow was placed over

her mouth or after its removal, nor was there t#enty thousand dollars ($20,000), and for

any indication or exhibition of anguish on such other and further relief as the court

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 a general denial.

the front porch and sat down to cool off. sougbt to be supported were substantially Which this judgment is When the inquiry upon cross-examination

was made of the plaintiff as to why she The plaintiff testified that she was 16

didn't make an outcry after the pillow was

removed from her mouth, her reply was that The alleged as- "she didn't know.” She further testified 7, 1899. Her mother that the defendant held the pillow over her Erwin, the defendant's mouth with one hand and she had hold of his

her to raise when she other arm with both of her hands, and, upon

and from that time on inquiry as to how the defendant effected an bouse on a farm belonging to the defend- | supposed she fainted. ant's father. The defendant was raised on Erwin in a two-story entrance, she replied she didn't know, that she

There is an entire absence of any testi

may deem proper." The answer was The facts upon

as follows:

Tears of age in May, 1899. sault occurred June having died, Mrs. Dother-in-law, took was two years old, she lived with Mrs.

mony as to the result of the outrage charged thought you were begging, but this way I to have been committed upon plaintiff. There won't give you anything. Q. Then what did was no testimony that any of her clothing she say? A. Well, she didn't say much of was disordered or torn; there was no evi- anything. I asked her if she had told her dence of any indication of any laceration of father, and she said 'No'; and I said, 'Let's her private parts, or that she bled, or that tell him.' We walked up to where he was, her person was scratched or showed any she on the inside of the fence and me on the signs of violence; and it may be added other side. I walked up and told him what that there is an absence of any testimony she had said. He said she ought to know. showing the physical condition and mental He didn't know. He couldn't tell. She lived anguish which would ordinarily follow. It there till March or April, 1900. I saw her is also shown by the evidence that her over at our house several times. I always foster mother came home 10 or 15 minutes spoke to her, and she to me. We were just after the occurrence, and that plaintiff made as friendly as we had always been, and I no complaint to her, nor were there any signs didn't notice any difference in her conduct. or indications, as testified to by her mother, I never had any idea that I was accused of that she had been outraged. Plaintiff made having anything to do with her.” no complaint to her father, to the defend- The defendant and his father both testified ant's wife or his father, nor to any other that on the evening of June 7th, from the person. Her conduct and actions toward the time the defendant came in from the field defendant subsequent to the alleged com- about 7 o'clock until about 9, they were both mission of the outrage upon her person were at home. The defendant and his fatber both the same as before the assault was made. refreshed their memories as to the fact that They frequently met, and were upon friendly they were at home on the evening it was alterms. It also developed that she never leged this outrage occurred by reason of some spoke to the defendant about the commission insurance policies having been procured by of this assault until about three months after the father on that evening, and the date of her child was born. Then, she says, for the the policies and check and receipt given in first time she mentioned it to him. She respect to them were introduced in corroborawent out in the field where he was plough- tion of their testimony as to what they had ing and asked him to support the child. He said in reference to being at home on that refused. Then she said to him, “This is your evening. child,” and he replied, “Oh, no, Jessie, you

At the close of the evidence the court gave can't come that.” And then, according to the following instructions at the request of her own story, he said to her, "Did you tell the plaintiff: your father about this?” and she said, "No." "(1) The court instructs the jury that if "And he said, 'Well, let us go right over you believe from the evidence that the dehere and see your father now,' didn't be? fendant did on or about the 7th day of June, A. That is what he said; yes, sir. Q. And 1899, forcibly ravish plaintiff and against her he walked over there with you, and you saw will, and as a result thereof plaintiff became your father? A. Yes, sir. Q. With you? A. pregnant, and that there was a child born of Yes, sir. Q. This man that ravished you? said illegal act on the 3d day of March, 1900, A. Yes, sir."

then your verdict will be for the plaintiff. Mrs. Erwin, the plaintiff's foster mother, "(2) The court instructs the jury that, if testified that after the date of the alleged as- you find for the plaintiff, you will find for sault the plaintiff and defendant were just her in such sum as you may believe from all of as friendly as they were before; that she the evidence in proof that she has been damnoticed no difference in them, and they con- aged, taking into consideration the illegal act tinued to live as one big family; that the complained of, the result of said act, the displaintiff never mentioned the occurrence to grace and wounded feeliugs of the plaintiff ; her; and that at no time upon her return and you will find for her in such sum as you home did she find the plaintiff in an excited may believe she has been damaged, not to condition.

exceed the sum of twenty thousand dollars. The defendant denied that he had ever "(3) The jury are the judges of the evihad sexual intercourse with the plaintiff, or dence and credibility of the witnesses, and that be ever knew or heard of any claim that you may give to the testimony of any witness he had been intimate with her until about such weight as they may deem it entitled to three months after the child was born. Then under all the facts and circumstances in one day she came to him in the field where he proof; and, if the jury believe that any witwas ploughing. The plaintiff's father was ness has willfully sworn falsely to any maploughing in the same field “about 40 rows terial fact in the case, they are at liberty away." She first said to defendant, "I came to disregard the whole of the testimony of to see how much you would give to help sup- such witness. And in reconciling the conflictport that child.” She hesitated for a mo- ing testimony, if there be any, the jury are ment. The defendant thought she was "beg- not confined alone to the direct statements of ging." He made no reply. Then she said, the witnesses, but may take into considera“You know it is yours.” To which the de- tion all of the facts and circumstances as fendant replied: "You know it is not; I shown by the evidence.

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esegtial to a recorers that plaintiff should

The court instructs the jury that it is not that at the time the alleged assault on plainTe by the direct testimony of eyewitness

tiff is alleged to have been committed, or es that defendant did debauch and carnally plaintiff had an opportunity to make an out

within a reasonable time thereafter, the sill: such fact mar be proved by the proof

y tbe plaintiff forcibly and against her cry, and that she did not do so, and did not of the facts and circumstances from which it

as soon as an opportunity offered, or at any

time prior to the time her baby was born, Day be reasonably and satisfactorily infer- complain of the alleged assault to any per

If, therefore, the jury believe from all son, and that she continued on friendly relatendant did bave sexual intercourse with the facts and circumstances in proof that de- tions with the defendant after the date of

said alleged assault, then the jury should paintiff at about June 7, 1899, without the take these circumstances into the case in de

useat of plaintiff, and forcibly and against termining whether the defendant did in fact ber will, they would be warranted in so find

have carnal knowledge of the plaintiff by Ing. and the verdict should be for the plain

force and against her will; and if you be

lieve from all these circumstances and all At the request of the defendant, the jury

the evidence in the case that the defendant Fere instructed as follows:

did not have sexual intercourse with the “(1) You are instructed that the burden of

plaintiff, or even if you believe that he did sboting by a preponderance of the evidence,

have sexual intercourse with her by her to the reasonable satisfaction of the jury, sent, then the defendant is not liable in this that the defendant assaulted and ravished

case, and your verdict must be for the dethe plaintiff forcibly and against her will, is

fendant. opra the plaintiff, and,

unless she has done "(c) The court instructs the jury that the 50. your rerdict must be for the defendant.

burden is upon the plaintiff to establish to *3 The court instructs the jury that even

your satisfaction that the defendant had sexthongh you may believe from the evidence

ual intercourse with the plaintiff by force that the defendant did

have sexual inter- and against her will. And the court instructs ccorse with the plaintife, yet if you believe

you that in this case the law presumes that from the facts and circumstances in evidence

the defendant is innocent, and that he did that the plaintiff consented to have sexual

not have sexual intercourse with the plainintercourse with the defendant, then the de

tiff, and before you are authorized to find for Eendant is not liable in any sum to the plain

the plaintiff the evidence in favor of the tiff, and your verdict must be for the defend- plaintiff should be strong enough, in your ant And if you believe that the defendant opinion, to overcome not only the testimony c bave sexual intercourse with the plain

and evidence offered by the defendant, includtil, then, in determining whether such in- ing all the facts and circumstances in this tercourse was

s against the will of plaintiff or case, but also the presumption which the law betber it was with her consent, you must

raises that the defendant did not commit take into consideration the reasonableness or

the assault alleged in the petition.” a reasonableness, the probability or improb

The cause was submitted to the jury upon all of the other facts and circumstances in ability, of the testimony of the witnesses, and the evidence and instructions, as herein in

dicated, and they returned a verdict finding the case.

the issues for the plaintiff, and assessed ber you believe from all the facts and circum

"13) The court instructs the jury that if damages at the sum of $10,000. From this stances in evidence in this case that the

de

judgment defendant, in proper form and due

time, prosecuted the appeal, and the cause is teadant did not have sexual intercourse with the plaintiff, then

now before us for consideration. the defendant. your verdict will be for

Culver, Phillip & Spencer, for appellant. *(The jury are the sole judges of the

Grant S. Watkins, for respondent. credibility of the witnesses and of the weight to be given to their testimony; and, in deter

FOX, J. (after stating the facts). Numersbould take into consideration the probabil

and credibility, you ous errors are assigned as grounds for the

reversal of the judgment in this cause. unreasonableness, of the witness' statements, the reasonableness or The defendant requested the court to give

the following instruction, which was by the Which such witness has court refused: “(b) If the jury believe from tbe facts and circumstances detailed in the trial, together with all the evidence that at the time the alleged as

sault on plaintiff is alleged to have been The defendant requested the court to give after, the plaintiff had an opportunity to

committed, or within a reasonable time therethe following instructions, which were re- make an outcry, and that she did not do so, der the pleadings and evidence in this case, *(a) The court instructs the jury that, un

and did not as soon as an opportunity offered,

or at any time prior to the time her baby Júar verdict must be for the defendant.

was born, complain of the alleged assault b) If the jury believe from the evidence

to any person, and that she continued on friendly relations with the defendant after

zining such weight

ity or improbability,

the interest, if any, in the result of the

evidence."

Itsed:

the date of said alleged assault, then the last occurs in the instruction asked, tble jury should take these circumstances into words "in connection with the other testi. the case in determining whether the defend- mony.” It was ruled in that case that the ant did in fact have carnal knowledge of the instruction should have been given as replaintiff by force and against her will; and quested, and that the modification of it was if you believe from all these circumstances error, and the cause was reversed. To the and all the evidence in the case that the de- same effect is the case of State v. Patrick, fendant did not have sexual intercourse with 107 Mo. 147, 17 S. W. 666. the plaintiff, or even if you believe that he In State v. Baker, 136 Mo. 77, 37 S. W. did have sexual intercourse with her with 810, an instruction similar in form to that her consent, then the defendant is not liable requested in the cases herein cited was reis this case, and your verdict must be for the fused, and it was held not to be error; but defendant." The refusal of the court to give an analysis of that case demonstrates that this instruction is one of the errors assigned the action of the court was predicated upon by appellant as grounds for the reversal of the peculiar facts developed upon the trial. this judgment.

Her father was charged with the offense; In State v. Witten, 100 Mo. 525, 13 S. W. she had no mother or sister near her, and 871, an instruction substantially the same as was completely under the dominion of her the one refused in this cause was requested father, and he had threatened to kill her if and refused, for which action of the court sbe divulged what had occurred. She bad the judgment in that cause was reversed. no female friends to whom she could talk Black, J., speaking for the court, said: “An about the outrage that had been perpetrated outcry and resistance are important elements upon her. Upon this state of facts, the court of evidence, and a want of these circumstan- very properly ruled that it was not error to ces, where they may reasonably be expected, thus refuse the instruction, and the correctgo far to disprove the charge of rape (State ness of the ruling, so far as the instructions v. Cunningham, 100 Mo. 382, 12 S. W. 376); were involved in the Patrick Case, was exand a concealment of the injury, where there pressly recognized. is an opportunity for early disclosure, may In Young v. Johnson, 25 N. E. 365, an inlead to a like inference. The evidence, as a struction of the same import as the one unwhole, tends strongly to show that this is der discussion was given, and the Court of one of those cases where there has been a Appeals of New York, in discussing its cormutual gratification of desires and passions, rectness, said: “The court, at the request of and that the notion of force on the part of the defendant, instructed the jury, in subthe man, and want of consent on the part stance, that the fact that plaintiff did not of the woman, is an afterthought. No dis- disclose the assault complained of within a closure was made by the woman until dis- reasonable time after the opportunity precovered to be pregnant, and the first charge sented itself for her to do so was in itself of force was made more than a year after a reason for impeaching the veracity of her the alleged outrage. Under these circum- story. It was undisputed that the plaintiff stances, the instruction should have been delayed disclosing to her female friends the given. The judgment in the case of State alleged conduct of the defendant towards her V. Wilson, supra, was reversed alone be- until she was satisfied of her pregnancy, cause a like instruction was not given as it though she met them frequently, and under was asked, and we must either overrule circumstances that furnished a very favorthat case or reverse the judgment in this able opportunity for her to do so. This was one."

a circumstance bearing upon the plaintiff's In State v. Wilson, 91 Mo. 410, 3 S. W. credibility and the general merits of her case 870, an instruction in the following form was that was proper for the jury to consider, and requested, and by the court modified as here- the charge of the court in that respect was inafter stated, and given: “Although the correct. People v. O'Sullivan, 104 N. Y. 481, jury may believe from the evidence that the 10 N. E. 880, 58 Am. Rep. 530." defendant had intercourse with Cora Leis, It is insisted by respondent that this inyet unless that intercourse was forcible on struction is only applicable to criminal causes; the part of the defendant, and against the hence there was no error in the refusal in consent of Cora Leis, the jury will find the this, a civil cause. We are unable to agree defendant not guilty; and, in arriving at a with learned counsel for respondent upon this conclusion as to the question of force and insistence. Plaintiff's cause of action is predconsent, the facts that the said Cora Leis icated upon an assault upon plaintiff with made no complaint at the time, or within force and violence, and by such means, a reasonable time thereafter, and that preg- against her will, ravishing her. The purpose nancy followed a single sexual connection, of the trial in this cause is to ascertain if are legitimate subjects of inquiry in deter- it is a fact that plaintiff was forcibly ravmining whether there was force on the part ished, and it is clear that the same purpose of said defendant, or consent to the inter- is sought in a trial upon a criminal charge course by the said Cora Leis." The court of rape. The same evidence is admissible gave this instruction in a modified form by tending to show the commission or noncomadding after the word "connection," when it mission of the act charged. The jury are the

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