90 Mo. 514 | Mo. | 1886
The defendant was indicted under the provisions of section 1260, Revised Statutes, 1879, which is as follows: “If any guardian of any female under the age of eighteen years, or any other person to whose care or protection any such female shall have been confided, shall defile her, by carnally knowing her [while she remains in his care, custody or employment,] he-shall, in cases not otherwise provided for, be punished by imprisonment in the penitentiary not exceeding five-years, or by imprisonment in the county jail not exceeding one year, and a fine not less than one hundred dollars.” ' On being tried he was found guilty and his. punishment assessed at two years imprisonment in the-penitentiary. At a previous term there had been a mistrial The indictment was in this form :
“ The grand jurors of the state of Missouri charged to inquire within and for the body of the county of Andrew and state aforesaid, upon their oath present and charge that Charles B. Buster, on the twentieth day of July, A. D., 1882, at the county of Andrew and state of Missouri, being then and there a person to whose care and protection one Hettie Jarvis, a female under the age • of eighteen years, to-wit: of the age of sixteen years, had been, and was, then and there confided, her, the said Hettie Jarvis, unlawfully and feloniously did defile, by then and there unlawfully and feloniously, carnally knowing her and having carnal knowledge of her body, she, the said Hettie Jarvis, being then and there con
I have marked with brackets the addition made to the statute as it existed prior to its amendment: 1 W. S. p. 500, sec. 9.
The sufficiency of the indictment was questioned in the trial court, and it is again questioned here. ■ Treating of the subject of the allegations necessary in the indictment, Mr. Bishop, in his admirable treatise, says : “ The doctrine of the courts is identical with that of reason, namely: that the indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted. This doctrine pervades the entire adjudged law of criminal procedure. It is made •apparent to our undeistandings, not by a single case only, but by all the cases. Wherever we move in this •department of our jurisprudence, we come in contact with it. We can no more escape from it than from the •atmosphere which surrounds us.” 1 Bish. Crim. Proc., sec. 81. Elsewhere, the learned author observes : “ The right of the accused person to have every element of his •supposed crime, in other words every individual thing which the law has specified as constituting any part of the foundation for its punishment, set down in allegation in the indictment, is secured in this country by constitutional guarantees.” Ib. sec. 86. “ But the ‘nature and cause ’ of an accusation are not stated where there is ■no mention of the full act and series of acts for which the punishment is to be inflicted. * * * There can be neither indictment nor information, except in writing, which, to justify the whole punishment, must specify the whole crime.” Ib. sec. 88. “ Wisely, therefore, the law requires the allegation to be full. As already shown, •every fact which is an element in a prima facie case of guilt must be stated; otherwise there will be at least one thing which the accused person is entitled to know •whereof he is not informed, and that he may be certain
On this point, Porter, J., in Mears v. Commonwealth, 2 Grant [Pa.] 385, expresses his views very happily, saying: “In the spirit of that principle which presumes innocence until guilt be established, we infer that which is not charged in the indictment, does not exist, and it is the business of the pleader to exclude, by proper averments, the conclusions to which the accused is thus entitled.” See, also, State v. Hayward, 83 Mo. 299, and cas. cit.
Does this indictment “contain an allegation of every fact which is legally essential to the punishment to be inflicted on the defendant?” Is “ every element of his supposed crime,” “every individual thing which the law has specified as constituting any part of the foundation for its punishment, set down in allegation in the indictment?” Is “all that is to be proved” specified in the indictment? Is “every fact which is an element in a prima facie case of guilt stated?” I cannot persuade myself that affirmative answers can be returned to any of these questions. Take the section and analyze it. What facts must be proven in order to make the defendant’s case fall within its prohibition? Plainly these: First, that the female was under the age of eighteen years ; second, that she was confided to the care of the defendant; third, that he defiled her by carnally knowing her; fourth, while she remained in his care, custody or employment. All of these facts, and each of these facts, was necessary to be proved, and, therefore, necessary to be alleged. The failure to prove any one of them, would have been fatal on the gronnd of lack of evidence, and the failure to allege any one of them, must be equally fatal on the ground of the lack of “allegation of every fact which is an element in a prima facie case of guilt.” Either this position is correct, or else it must
It is urged, on behalf of the state, that the words in the indictment which I have underscored, make the indictment good. This conclusion is unwarranted; those words are but a repetition of what had already been alleged, and were, therefore, unnecessary, and in any event can only be construed as referring to a fact previously stated. If the indictment was good before their insertion, their subsequent insertion did not strengthen the indictment under the old law, nor supply the place of the additional words which the legislature saw fit to insert as a new ingredient of the crime in question. The construction sought to be put upon the indictment would rmllify the force and effect of the amendatory words, and reduce the statute to its original and unamended condition. Such a result is not to be permitted. Pull force and effect is to be given to the amendatory words, and they must be held to mean something, requiring their allegation, as well as their proof, in order to a successful prosecution.
It results that he judgment should be reversed, and the cause be remanded.