191 Mo. 43 | Mo. | 1905
This case is here by appeal on the part of the defendant from a judgment of conviction in the circuit court of the city of St. Louis upon an indictment charging the defendant with assault with intent to ravish Christina Hamel. This indictment was returned by the grand jury of the city of St. Louis on May 12, 1904, and as the validity of it is not challenged, we deem it unnecessary to burden this opinion with a reproduction of it. On June 22nd, following the return of the indictment, defendant entered his plea of not guilty and was placed upon trial. The testimony on the part of the State is substantially as follows:
The prosecuting witness testified that she was, at the time of the alleged assault, sixteen years of age, and lived with her parents at 4450 Tholozan avenue, in the suburbs of St. Louis. Plaving attended school with defendant and living a short distance from him, she knew him well, as she also knew all of his brothers and sisters. On the morning of the assault, between nine and ten o’clock, she was going up to Joseph Musler’s with her basket to get some vegetables. As she walked along the Pernod road, she passed a little field in which defendant was cultivating some onions; she recognized him as soon as she saw him. Defendant left the field and walked through the bushes up to- the road where
Defendant testified in his own behalf, and while admitting his acquaintance with the prosecuting witness, Christina Hamel, positively denied any assault upon her. In fact, positively states that he did not see her on the morning she designated, nor was he about the place where she testified the assault occurred; in fact, his testimony contradicts all the material facts testified to by the prosecuting witness. Three other witnesses were introduced by the defendant and they testified that they were in the neighborhood of the little bridge (that is, within ninety or one hundred yards of it), near which it is said by Christina Hamel this assault occur
At the close of all the evidence the court instructed the jury, and as the correctness of the instructions are not challenged in the brief of counsel for appellant, other than that there was no evidence upon which to predicate them, there is no necessity for a reproduction of them. If the facts were sufficient upon which to base the instructions, then it is only necessary to say that the declarations of law were in due form and have repeatedly, in cases of this character, met the approval of this court. Upon the submission of the cause to the jury upon the evidence and instructions, they returned a verdict finding the defendant guilty of the charge in the indictment and assessing his punishment at imprisonment in the city jail for six months and a fine of one hundred dollars. After motions for new trial and in arrest of judgment were timely filed and by the court overruled, judgment was rendered upon the verdict as returned and from this judgment the defendant prose
OPINION.
The motion filed by respondent in this cause to dismiss the appeal for the reason that the record fails to disclose the filing of any affidavit after the rendition of judgment, will he denied, for the reasons fully expressed in State v. Graham Smith, 190 Mo. 706. It is also suggested that the record in this cause does not properly show the filing of the hill of exceptions within the proper time and in the manner provided by law. We will say as to this suggestion that while the disclosures of the record, in the respects to which our attention has been called by the Attorney-General, are not as clear and satisfactory as they should he, yet it is sufficiently certain that the hill of exceptions was filed within the proper time as to demand of us the disposition of this cause upon its merits from the entire record as presented.
Learned counsel for appellant, in his brief before us, presents hut two questions for our consideration:
1. That there was no evidence in this case upon which to predicate an instruction for assault with intent to ravish.
2. It is insisted that if the defendant was guilty of any offense under the evidence, it was simply that of a common assault and that the court committed error in failing to instruct the jury upon that offense.
Upon the first proposition, the rule has been repeatedly announced by this court that if there is any substantial evidence tending to show the defendant guilty of the offense charged against him, the sufficiency of the evidence to support the verdict will not be considered by the appellate court. [State v. Graham Smith, 190 Mo. 706; State v. DeWitt, 152 Mo. 76; State v. Williams, 149 Mo. 496; State v. Swisher, 186 Mo. l. c. 8; State v. Williams, 186 Mo. 128.]
This brings us to the consideration of the only remaining proposition presented by appellant, that is, the insistence that the court failed and neglected to declare the law covering the entire case. Our attention in the brief is specially directed to the failure of the court to instruct the jury upon the evidence of a common assault. The trial court should not be convicted of this error unless its attention has been called to it and at least afforded an opportunity, if it was error, to correct it. An examination of the record in this cause fails to disclose the preservation of any exceptions at the time the jury were instructed to the failure of the court to give all proper and needful instructions covering the entire law of the case. Again, it will be noted that no complaint of the failure of the court to fully instruct the jury is urged in the motion for new trial. It is fundamental upon questions of practice that the appellate court will not review any complaint of error to which the trial court’s attention was not called in the motion for a new trial. The contention of appellant upon this proposition is best answered by the announcement of the rule in State v. Cantlin, 118 Mo. l. c. 111, where it is thus clearly stated: “The instructions given by the court seem fairly to cover the issue joined between the State and the defendants, and if they did not,
There was substantial evidence both ways upon the issue joined in this cause between the State and defendant, and the court confined its instructions to the issue presented. If it was error upon the part of the court in failing to embrace other grades of crime in its instructions to the jury, the attention of the trial court was never called to it, and the complaint is now urged for the first time in this court. Under the repeated announcement of the rule by this court upon that subject, the error now complained of is not a subject of review.
We have thus indicated our views upon the legal propositions as disclosed by the record. The testimony was sufficient to support the verdict; the instructions of the court were such as have repeatedly met the approval of this court, and finding no reversible • error, the judgment of the trial court should be affirmed, and it is so ordered.