194 Mo. 442 | Mo. | 1906
This cause is here for review upon appeal from a judgment of conviction of the defendant in the criminal court of Greene county, Missouri. The only assignment of error to which our attention is directed in the brief of counsel for appellant being that the indictment is insufficient to support the judgment, it is well to here reproduce it. Omitting formal parts, it thus charges the offense:
“The grand jurors of the State of Missouri, empaneled, sworn and charged to inquire within and for
The record in this cause discloses that Hon. James J. Gideon, judge of said criminal court, disqualified himself, and Hon. James T. Neville, judge of the twenty-third judicial circuit, was called in to try said cause. After a mistrial at the January term, 1904, defendant was again tried at the March term, 1904. At said term, the prosecuting attorney filed a motion, supported by an affidavit, alleging that the sheriff was biased in favor of the defendant and praying that he be set aside and that the coroner summon a jury. This motion was sustained by the court. Then defendant filed a motion, supported by affidavit, alleging that the coroner was biased against the defendant, and praying that he be set aside and that some suitable person be appointed elisor. This motion was by the court sustained, and B. W. Lamb, a disinterested person, possessing the required qualifications, was appointed elisor, and summoned the jury, a special venire being summoned on motion of defendant, and the trial proceeded.
The evidence on the part of the State tended to show that Jennie Tuttle, the prosecutrix, was about sixteen years old and was employed as a house girl at a boarding house kept by Mr. and Mrs. Weddell, in the city of Springfield. There were some five or six unmarried men who boarded at said house, among whom was defendant. That for perhaps several weeks prior to the alleged assault, there were friendly relations ex
The evidence on the part of the defendant tended to show that there was a friendly feeling existing between him and prosecutrix, and had been ever since he had been boarding at the Weddell home, but that they were not engaged. That defendant was twenty-seven years old and worked at the railroad shops in Spring
At the close of the evidence the court instructed the jury and the cause was submitted to them and they returned a verdict finding the defendant guilty as charged and assessed his punishment at three years ’ imprisonment in the penitentiary. Motions for new trial and in arrest of judgment were timely filed and by the court overruled. Judgment and sentence were entered of record in accordance with the verdict, and from this judgment defendant prosecutes his appeal, and the cause is now before us for review.
OPINION.
The only complaint made by counsel for appellant in their brief now before us, in respect to the final disposition of this cause in the trial court, is directed to the
- This same insistence was made in the recent case of State v. Neal, 178 Mo. 63, that is, that the defendant was not fully informed o.f the nature and character of the accusation against him. In treating this subject in that case, Gantt, J., speaking for this court, said that “an assault is charged; the name of the female assaulted and the felonious intent to rape are also fully charged. It was not necessary at common law to state all the facts constituting the assault. In State v. Smith, 80 Mo. 516, Sherwood, J., speaking for this court, said: ‘ It was not needful that the indictment should set forth the manner, means or mode of the assault charged. The general averment, that an assault was made with the intent, etc., was all that was requisite; details as to the mode are immaterial and unnecessary.’ [Wharton’s Criminal Law, sec. 644; Wharton’s Prec. of Indict., 253 et seq.; 3 Chitty Crim. Law, 816; State v. Chandler, 24 Mo. 371.]”
It is'insisted that this indictment fails to properly charge the intent with which defendant committed the act as alleged. We are unable tcgive our assent to this insistence of appellant. The indictment charges that the defendant “unlawfully and feloniously made an assault in and upon the body of one Jennie Tuttle, there being, with intent her, the said Jennie Tuttle, then and
It will be observed that the intent with which defendant made the assault is plainly, alleged, that is, it was his intent “then and there unlawfully, forcibly and against her will, feloniously to ravish and carnally know ’ ’ the prosecutrix.
The indictment substantially charging that the defendant intended to forcibly and against the will of the prosecutrix feloniously ravish and carnally know her, we are of the opinion that the felonious intent with which the acts were done is clearly embraced in such charge. While in State v. Riseling, 186 Mo. 521; State v. Wray, 109 Mo. 594; and State v. Prather, 136 Mo. 20, the charge was under the statute, in reference to assaults upon females under the age of consent, and hence, there was no necessity for the allegation of committing the assault forcibly and against the will of the prosecutrix, yet it was just as essential in those cases to plead the intent, and the same principles applicable to the correct method of pleading it were involved as in the case at bar. The pleadings in those cases were held sufficient, and, so far as charging the intent, were similar in form to the indictment in this case. The indictment in this cause properly charges the offense and must be held sufficient.
We have indicated in the statement of this case the tendency of the proof, and it is manifest that it was ample to sustain the conclusion reached by the jury, as indicated in their verdict. That the defendant made an assault upon prosecutrix the evidence on the part of the State strongly tends to prove, and this showing having been made, it was clearly the province of the jury to determine his intent in making such assault. There was ample proof of the actions and conduct of the defendant to warrant the court in submitting the question of his intent to the jury.
We have indicated our views upon tbe only assignment of error suggested by learned counsel for appellant in their brief, and finding no reversible error, tbe judgment should be affirmed, and it is so ordered.