State v. Smith
80 Mo. 516
Mo.
1883
Check Treatment
Sherwood, J.

Thе defendant was convicted of an assault with intent to commit a rape. The indictment is well enоugh. It was not needful that it set forth the manner, means or mode of the assault charged. The general aver*518ment tbat an assault was made with the intent, etc., was all that was requisite; details as to the mоde, are immaterial and unnecessary, not necessary to be incorporated in the indiсtment, as the circumstances evincive ‍‌‌​‌‌‌‌​​​‌‌​​‌​​‌‌​‌‌​​​​​‌‌‌‌‌​​​​​​​​​‌​​‌‌‌​‍of the design with which the act was done, are regardеd as matters of evidence to demonstrate the intent to the jury. 'Wharton Crim. Plead, and Prac., § 159; 1 Whartоn Crim. Law, § 644; Wharton Prec. of Indict., 253, et seq; State v. Chandler, 24 Mo. 371; 3 Chitty Crim. Law, 828.

II.

It is claimed that there is no evidence to justify the verdict. I entertain a different opinion. An assault is defined to be: “An inchoate violence to the person of another with the present means of carrying the intent into effect.” 2 Greenleaf Ev., § 82. An assault with intent, may exist without the actual attempt. Regina v. Dungey, 4 F. & F. 102, and note. There need not be a direct attempt at violеnce, but indirect preparations toward it, will, in certain circumstances, constitute an assаult. 1 Selw. N. P., 27 ; Bull. N. P., 15 ; 3 Chitty Crim. Law, 821. Thus it has been held that where ‍‌‌​‌‌‌‌​​​‌‌​​‌​​‌‌​‌‌​​​​​‌‌‌‌‌​​​​​​​​​‌​​‌‌‌​‍the prisoner decoyed a female under ten years of age into a building, and was detected within a few feet of her in a state of indecent exposure, although he had not touched her, that he was properly convicted of assault with intent tо commit a rape. Hays v. People, 1 Hill 351. The intent to use force may be inferred from the circumstances. Thus in one case the prosecutrix awoke ; she found the defendant in bed with her, holding her by the wrist, and he escaped when she called on the family for help; it was held there was evidence sufficient tо convict him of an assault with intent to ravish. Carter v. State, 35 Ga. 263; I Whar. Cr. Law, § 576 a.

In the case at bar the defendant was discovered аbout two o’clock in the morning in the bed where Mrs. Hodson, her ‍‌‌​‌‌‌‌​​​‌‌​​‌​​‌‌​‌‌​​​​​‌‌‌‌‌​​​​​​​​​‌​​‌‌‌​‍husband and a little child were sleeping. The blanket had been moved from her person- and she lay on her hack, *519and stooping over hеr, and with his face within a foot of hers, the defendant is discovered with nothing on but his shirt, on his knees with his hands resting on еach side of the prosecutrix. What was he there for ? Certainly not to say his pater noster. It may be that he thought he could gratify his cumulative concupiscence hy successfully per-sonating the woman’s husband. Or, it may be he was so inflamed with fleshly lust as rashly to imagine that, despite the unpropitious surroundings, he could storm the citadel of virtue before successful resistance could snatch his prey from him. It ‍‌‌​‌‌‌‌​​​‌‌​​‌​​‌‌​‌‌​​​​​‌‌‌‌‌​​​​​​​​​‌​​‌‌‌​‍is wholly immaterial whether he entertained the idea of fraud or force ; there was sufficient evidence for the jury to have found either way, and by their verdict they have negatived the idea of fraud and аffirmed that of force, and this ends that matter. As bearing on the question of intent in similar circumstances аnd situations: State v. Eddings, 71 Mo. 545; State v. Carpenter, I Houston Cr. Rep. (Del.) 867; State v. Neely, 74 N. C. 425.

III.

So far as concerns the instructions as to insanity, and as to reasonable doubt, they аre in accord with those heretofore approved by this court. And as to the second instruсtion, given at the instance of the prosecuting attorney which would have sanctioned a vеrdict of the jury for a common assault, it is scarcely necessary to say, that as the jury have found the defendant guilty of a higher offense, such an instruction could have worked him no hurt. And since the instructions given were sufficiently fair the refusal of others constitutes no error. As to the point that the in-struetions should have been read in the first instance to the jury by the court, to-wit by the judge himself, it suffices to say that section 1908 does not require that this be done any moie than it requires that the instructions be actually written by the court, merely because that section prescribes that “ the court must instruct the jury in writing.” Even *520if it be assumed that the section being considered is mandatory, as counsel claim, from no part of it can it be gathered, or so much as reasonably ‍‌‌​‌‌‌‌​​​‌‌​​‌​​‌‌​‌‌​​​​​‌‌‌‌‌​​​​​​​​​‌​​‌‌‌​‍inferred that the court was either expected to write the instructions for the jury, or to read them to the jury after they have been written.

IV.

Nor is there anything in the point that the indictment charges that the assault was made on Olive Hodson and the evidеnce shows that it was Mrs. Ilodson. The court before which the trial was had did not find that the variance was material to the merits of the case, or prejudicial to the defense of the defendant, or else, doubtless, it would have directed an acquittal. The statute governs this. R. S., 1879, § 1820; State v. Wammack, 70 Mo. 410; State v. Sharpe, 71 Mo. 218.

V.

If was within the discretionаry powers of the court to to refuse to admit Hr. Mathews to testify on behalf of the defendant, аfter the case was closed, but before it was submitted to the jury. The Hr. had not been subpoenaеd, nor had any diligence to secure his attendance been shown. Roach v. Colbern, 76 Mo. 653.

YI.

The case of State v. Emory, 79 Mo. 461, is an answer to the objections taken to the closing remarks of the prosecuting attorney. The judgment for these reasons should be affirmed.

All concur.