| Mo. | Oct 15, 1878
It will be observed that the indictment contained two counts, one for committing and the other for attempting to commit a rape. The jury found the defendant guilty,.on the first count, but ■ returned no verdict on the second; and this, it is alleged, was an error for which the judgment should be reversed. The accused was put upon his trial on both counts, and his conviction on either amounted to an acquittal of the charge contained in the other. If found guilty of committing the rape he could not have been found guilty of attempting the commission of the same rape. In State v. Pitts, 58 Mo. 558, this court held that a general finding of guilty, when an indictment contains three counts, if the several counts relate to the same transaction, will support a judgment.
Ve see no objection to the first instruction given for defendant.' The" defendant' complains that' 'the court refused to give it as asked, and gave it in a modified form. In what form it was presented, or how modified, is not disclosed by the -record. It certainly is not'objé'ctionable as given. The fifth given for the State, the record shows was withdrawn from the jury by the court before argument of counsel was concluded. The evidence is of the most disgusting character, sickening in its details, and will be omitted.
the judgment is affirmed.
Affirmed.