State v. White, 35 Mo. 500

State v. White

35 Mo. 500 | Mo. | 1865

Bay, Judge,

delivered the opinion of the court.

*501At the May term, 1864, of the St. Louis Criminal Court, the defendant was indicted for a rape alleged to have been committed on the person of one Margaret Kessebring, over the age of twelve years. The indictment contained a count, also, for an assault with intent to commit a rape. The principal witness examined by the State was the said Margaret Kessebring, whose testimony was of such a character as to call for the utmost caution on the part of the jury. But if full faith and credit are to be given to her statement, then the act was fully consummated, and the jury were not warranted, under our statute, in convicting the defendant of an assault with intent to commit a rape.

By the 2d section of the 9th art. of our act relating to crimes and punishments, it is provided that, “No person shall be convicted of an assault with intent to commit a crime, or of any other attempt to commit any offence, when it shall -appear that the crime intended, or the offence attempted, was perpetrated by such person at the time of such assault, or in pursuance of such attempt.” (1 R. C. 1855, p. 637.) For this reason the verdict must be set aside and a new trial awarded.

Another question raised by the record relates to the admissibility of evidence. The defendant undertook to prove by one Alton Long, particular acts of lewdness on the part of the prosecutrix, but the court refused to receive such evidence, and this is assigned also as error.

We see no objection to this ruling of the court. The doctrine is well maintained that in cases of this kind the character of the prosecutrix for chastity may be impeached, but this must be done by general evidence of her reputation in that respect,- and not by evidence of particular instances of unchastity, for it is not to be presumed that she can come prepared to meet evidence of particular facts. (3 Greenl. § 214; 1 Phillips, 762; Ros. Crim. Ev. 710; McCombs v. The State, 8 Ohio, n. s., 643.)

Judge Dryden concurring,

the judgment will be reversed and the case remanded for a new trial.