
    Robinson v. Musser, Appellant.
    
    Volenti non fit Injuria. The maxim applied in a civil action for rape.
    
      Appeal from Ray Circuit Court. — Hon. Geo. "W. Dunn, Judge.
    Eeversed.
    . The plaintiff, Mary Eobinson, testified that she was thirty-five years of age, that she resided with her father in Cameron, Clinton county, Missouri, and had resided with her father at that place for eight years; that her father’s residence was on the opposite side of the street from defendant’s residence; that she had known defendant and his family during the time she had resided with her father; witness and her father’s family had been friendly and intimate with defendant’s family, and that defendant and her father were intimate during the period aforesaid. At the time, and for some time previous to the defendant’s conduct toward her, witness had been engaged in teaching school in the country, two and a half miles from Cameron; that while teaching the school she stayed at her father’s and rode a horse backwards and forwards evening and morning to her school. My school was just out. A short time before my school was out, I was too unwell to teach, and Ella Musser, defendant’s daughter, proposed to go and teach for me that day. I accepted her offer and she went. I remained at home. The next morning I was better, and my father came and told me my horse was out, and I could not get him, and that Mr. Mnsser would take me in his buggy and bring me back, as he was going to his farm beyond there. I accordingly went in the buggy with him out in the morning, and he called by for me in the evening, and I returned with him. Nothing unusual occurred on these trips. On the next day I rode home with him again in his buggy. This was the first idea I had that he intended anything wrong toward me. In going along after we left the school house, I spoke of going to the Centennial. Defendant said you had better go with me. I asked him if his daughters were going. He said no. I told him I could not accept such a proposal except from a relative or snecial friend. Defendant talked to me for ten minutes, and said if you will go with me as my wife I will pay your expenses; spoke of his great love for me; that he would give me a house and lot if I would be his special friend. I told him I did not want to hear such talk, and never to talk to me so again. When we got to Cameron he drove up to my father’s gate and let me get out of his buggy. After supper he stepped into the front room of my father’s house and kissed me. I brushed it off with my hand, and told him my father was in the back room; he went into the back room where my father was, and I retired to my room upstairs. After I had fallen asleep I heard some one at my window say “ Mary, Mary.” ■ It awoke me and I got up and asked who was there, and ascertained it was the defendant í I asked him what he was doing there — told him he was an old fool — to get away from there. I could not see him. Defendant had climbed up to my window on a ladder. I told him if he disturbed me and did not get away I was going to my father and mother. I saw no more of him that night. My father was sick is the reason I made no outcry or noise that night. Defendant offered to take me to my school the next day. I wanted to go with him. I wanted to • tell him what I thought of him. I had some talk for him, and I did talk to him harshly about coming to my window the night before, and reproved and rebuked him as severely as I could, for Ms conduct. He appeared to be sorry, and made all the promises I could ask for his future good conduct. I told him, to prevent any scandal and talk on our account, of the respect I had for his family, and the promises he made me, I would say nothing about it, and act as though nothing had occurred. I returned home with him' on Friday evening in his buggy. He came on Saturday morning to my school house with Misses Ella Musser and Ella Haven by previous appointment in defendant’s carriage. I went with my father to school that morning. It was Saturday, the last day of my school. I returned that evening from the school in defendant’s carriage about five o’clock. We stopped in Cameron as we passed through and took a glass of soda — it was very warm. I sat on the back seat with defendant in the carriage. When we got to defendant’s house, or opposite there in the street, I got out of the carriage and took some flowers and books over home and came back to defendant’s house, and staid until after- supper. I then started home and got as far as the front gate of the yard, and Ella Musser, defendant’s daughter, came out and threw her arms around me and insisted and pressed me to stay all night. I tried to excuse myself and go home, but she insisted and pressed me so strongly I finally consented to stay all night. We staid in the. parlor of defendant from the time I went over that evening until Ella Musser and I retired to bed. The defendant and I were alone in the parlor a short time that evening while the girls were preparing supper. After Ella and I retired to bed about nine o’clock, we remained awake for sonletime lying on the bed.' It was extremely warm night; we lay on the top of the bed — with nothing over us. MM had our gowns on. We were in the southeast room, up-stairs. There was a bed, small table, wash-stand,' bowl and pitcher and a chair or two in the room. We put out fhe light. Ella Musser was sleeping with me. I was on ifb.e front side of the bed. Ella had gone to sleep. I remained awake until I heard the clock strike eleven, then dropped off’ to sleep. The first thing I heard was some one whispering in my ear, “ Mary, Mary.” It awoke me. It was Musser,' the defendant. Pie put his arms under me, drew me off the hed and carried me to the south window. I made no noise or outcry for fear I would wake up Ella Musser, his daughter. I was not afraid of defendant’s seducing or hiring me. I thought I was master of the situation. My idea was to get clear of him without having any scandal grow out of it. Said he wanted to talk to me — would not hurt me — kept pulling me along toward the door. I thought it best to get him out of the room for fear of waking Ella. He said he would not go unless I did. Very well, I said, I will go with you to the foot of the stairs. When we got there, without making any stop, he took me in his arms, carried me to his bed-room — said don’t be afraid, I won’t hurt you, and laid me down on his bed. Pie was elevated above me in a half reclining position; told me bow much he loved me; how much he would do for m<-; how much money and property he would give; continued to importune me. I said to him, you are holding me m-re against my will — you have a wife — I am not that W If she knew this she would kill me, and would be <<oii g right. Up to that moment I had no idea of force, or that he would use force. I used all the argument and reasoi I could command, and finally appealed to him on account of my situation arising from my monthly period. Ho all at once suddenly put his hand on my mouth and his weight was on me. ] The gown was raised up, the male organ made the entry, emitted the semen, and it was over very quick, instantaneous. I used all the force and means in my power to prevent it. / I could not believe he would use force, and I knew I never would consent, and did not consent. As soon as it was over, he let me go, and walked with me to the foot of the stairway. I went up-stairs to the room where I had been sleeping — laid down on the bed. I lay there in great distress of mind. I could not deterinjue what was best to be done, or what I should do. I know if it was known it would produce great scandal and talk. I wanted advice. His daughter' Ella was not awake. She did not exhibit any indications of being awake. I asked Ella the next morning if she was awake during the night, and said she was not. I lay there all night in great distress of mind; could not go to sleep until just before day I fell into a little doze of sleep. The semen had been dropped on the gown. Next morning I washed the gown, remarking to Ella I had soiled it a little. My father was sick at the time, mother was complaining very much. I did not tell them because I knew it would distress- them. I did not tell my brother-in-law because he is afflicted with heart disease and could not be excited. I was afraid he might act rashly and. kill Musser, the defendant. I reflected oyer the matter and dreaded the great scandal that would grow out of it, and was reluctant to make it public because of the scandal that I thought would grow out of it. The families had visited and been intimate and I respected Mr. Musser’s family and daughters. I did not tell my mother because I knew it would distress her so much. After reflecting upon it I went to my best friend, Mrs. Harwood. I thoxight I could talk to her; that she was capable and would give me advice ; told her all the circumstances and conduct of defendant toward me. She advised me to wait until her husband, Mr. Harwood, came home, and he would tell me what I had best do. I accordingly staid at her house and waited until he came and advised with him before I decided what I should do. I then determined upon my course — had a complaint made, and had the defendant arrested and determined to prosecute him and also brought this suit against him.
    Hpon cross-examination, she further testified : T was married at the age of twenty years; lived with my husband seven years, which terminated eight years ago. My husband left me and I got a divorce. There was one child born from the marriage, which has since died. My husband had been gone two or three years, traveling. I then heard of him no more; don’t know where he is. My business had been taking orders for good books, teaching school, have traveled around some to see friends. At the time of this trouble and previous I was teaching school. In .1814: I formed the acquaintance of defendant and his family— have been intimate and friendly, until this occurrence. A fence divides our house and lot from Judge Stokes’ on the same street; defendant’s house is on the opposite side of the street. I always treated defendant with friendship. I met him before this at the depot at Gallatin and advanced across the depot and shook hands with him. After I got in the car and took my seat defendant came in, took a seat beside me on same seat and rode with me to Cameron, where we were going home. I did not invite him to take a seat by me. I was unwell, and defendant’s daughter, Ella, went out and taught school for me one day. One morning my father came in and said to me, your horse is out and you will have to go with Musser to school to-day in his buggy, and I went with him. I went with him to my school in all, I believe six times. My school was two and a half miles ih the country. He said nothing wrong nor made any advances until the third or fourth trip. I went with him three times -after he had made the advances stated. After we got a short distance from the school house we began talking about the Centennial. He said I had better go with him; would pay all my expenses. I told him I could not accept such a proposal except from a relative or special friend. He said I must go as his special friend or his wife. There was more conversation, he making offers and promises which I could not accept. On the same evening he came to my father’s house — I was in front room — and kissed me. I told him father was in the back room. He went in there; stayed a few minutes. My father was sick. On the same night about ten o’clock, I was barely asleep, I heard some one calling me, saying “Mary, Mary.” It was defendant. He had climbed up on a ladder to the window. I found that it was Musser. I told him to go away, old fool, what was he doing there. He got down and went round to the front gate. I was in middle chamber where I was sleeping. I threw a shawl around me; went across the room to the window, about ten or twelve feet, and told him to go away, and if he did not go I would inform my father and mother. He said he wanted me to come down. I ordered him off; he went, I saw no more of him. The family had retired for the night. My brother had not come in; he was out in town ; would have to pass through my brother’s room to get to my room. Musser came to the east window. That room was not occupied. He used a long ladder to get up to the window. I am not sure what he said; being asleep, heard a noise which awakened me — found it was defendant. My brother had not come in. He was not at the window more than two or three minutes ; did not remain at the gate longer than at the window. I met him next morning; am not certain whether at his house or my father’s. He took me to school; went alone with him in his buggy. He came to my father’s house in his buggy for me. We returned together alone in the buggy that evening. I wanted no'one with us. I wanted to talk to him and tell him what I thought of him and warn him he must not do so any more. I did so in as plain terms as I could do. He promised me that he would not. I agreed with him, to keep down scandal, and save the respectability of his family, I would say nothing of what had occurred and would be as we had been, and no one was to know anything about it. On Saturday morning, the last day of niy school, Ella Musser, Ella Haven and defendant came out to my school in defendant’s carriage. I went with father earlier than the others. On that evening I returned with defendant and the girls in defendant’s carriage, riding on the back seat with defendant. We got into Cameron about five o’clock. It was oppressively warm and we took a glass of soda and drove down the street to defendant’s house. I got out of the carriage at the same time with Miss Ella Haven. I went over to my house with some flowers and books in my hands and returned to defendant’s house. ■ We were all in the parlor; defendant in the parlor also. Defendant’s two daughters went out to prepare supper, leaving defendant and myself alone in the parlor. How long we were there together I can’t say. It was while the girls were getting supper. We were soon invited out to the dining room for supper. There was nothing wrong in the conversation.between defendant and myself while in the parlor. We all sat down to supper-table together. After supper I proposed to go home and went out as far as the front gate, and Ella Musser came running out, threw her arms around me, and prevailed on me to go back and stay all night, which I did at her pressing request. Mrs. Musser, her mother, was on a visit to Kentucky. After sitting awhile in the parlor, Ella and myself retired to a room up-stairs for bed. It was not very dark nor very light in the room where we slept. We had gone to sleep when Musser came into the room. The defendant in calling “ Mary, Mary,” spoke in a very low tone of voice. It seemed he was trying to wake me without disturbing Ella. In taking me from the bed to the south window we knocked over the wash-bowl and pitcher? and I was afraid the noise would wake Ella. We talked some time at the window in a low voice. We talked there I suppose about five minutes. He said he wanted me to go down-stairs and have a talk with him. I admit I said I would go down to the foot of the stairs with him. In going down the stairs he kept me in advance of him. When we got to the bottom of the stairs we were at the entrance of the sitting-room which adjoins Musser5s bedroom. I thought his object all the while was to coax or bribe me. I had no idea of him using any force. We had no talk at the foot of the stairs; took me right up and along and laid me on the back of the bed. I was lying on my back — he was sitting or reclining on the side of the bed in front of me. We were talking there on the bed— from ten to twenty minutes. I had on a long gown ; had no other clothing on me. I lay in the same position all the time. He made propositions to reward me ; told me how much he loved me. I told him I would not for all he was worth. I think the gown was raised up and all was done quick, instantaneously. There was something put over my mouth. T cannot tell how my legs were. The discharge of semen was after the penetration. It was a seminal discharge on the gown -which I washed off the next morning. There was no chance to refuse at the bottom of the stairs, he took me right on without stopping. I resisted and protested all I could, and said all I could, made every appeal and finally appealed to him on account of my condition in my monthly sickness. It all did no good. I made no outcry and gave no alarm at any time because I thought it would create a great scandal, and I had great respect for the defendant’s family, and thought it would involve all in great trouble and scandal. Eor this reason I made no outcry and made no alarm, and abstained from telling my father and mother because it would distress them. The next morning we were waked up about seven o’clock and went down to breakfast. Defendant, his daughter and myself all sat down at the same table as usual. I sat at the corner of the table next to the defendant — he sitting at the foot of the table. After breakfast I remained until between eight and nine in the morning and went home. There was nothing unusual with me that morning. I appeared and acted as usual; said nothing about what had taken place; did not go to church that day; remained at home; did not tell my mother or anybody else about what had occurred. Mrs. Harwood was the first one I told. She was my friend and told me what to do. On the first part of *the week, Monday and Tuesday, after this occurrence, I went around visiting in Cameron as usual; went to Hiram Smith’s and other places, as I had usually done, as though nothing had happened. I tried to be, and suppose was as cheerful as I had been before; did not show in my conversation or conduct that anything had happened. In the meantime I had not said a word to any person about it during this time. P was undetermined in my mind what I would do or what course I would take. I had a great horror for the scandal that I believed would grow out of it, and this was the reason for being quiet and saying nothing about it. I don’t know whether I could have alarmed the neighborhood if I had made an outcry or made any noise, or give any alarm. Mr. Nelson, Mr. Stokes and my father lived close by, and other neighbors not far off. I did not try to arouse Mr. Musser’s family because his daughters were young and I thought they ought not to know of the scandalous conduct of their father. I never stayed all night at Mr. Musser’s when his wife was at home. Since she had been absent on this visit, I stayed there some two or three nights upon the invitation of his daughters when I stayed, and Mrs. Musser had requested me before she left to keep an oversight over them, and come and see them in her absence. I think I went to see Mrs. Harwood on Monday after occurrence, but she had company, and I did not get an opportunity to tell her until Tuesday night, when I told her all.
    
      C. T. Garner § Son and Wm. Henry for appellant.
    
      Chas. A. Winslow, J. H. Shanklin and J. T. Harwood for respondent.
   Sherwood, J.

The petition in this cause is as follows: “ Plaintiff states that she is a femme sole and of lawful age to bring this action, and for cause of action against defendant, states that on the 22nd day of July, 1876, she was a guest at the house of defendant in the town of Cameron, Missouri; that while she was there as a guest as aforesaid, defendant assaulted and bruised plaintiff in a rude and insolent manner, and then and there forcibly, against the will of plaintiff, and in disregard of her entreaties to be released by defendant, and against such resistance as plaintiff was able to offer, defendant ravished and carnally knew plaintiff, to her great damage in body and health and mental anguiáb and humiliation, wherefore by reason of the premises herein set forth, plaintiff says she is damaged in the sum of $25,000, for which she asks judgment and all proper relief.”

The answer denied every allegation of the petition. We have read with great care the evidence herein, and as a summary of our views of the plaintiff’s own testimony, feel constrained to say: “ Volenti non jit injuria.” Burrill

Law Diet., and cases cited. Judgment reversed.

All concur.  