McComas v. State
Decision Date | 31 October 1847 |
Citation | 11 Mo. 116 |
Parties | MCCOMAS v. THE STATE. |
Court | Missouri Supreme Court |
APPEAL FROM ST. LOUIS CRIMINAL COURT.
HART & BLANERHASSETT, for Appellant.
STRINGFELLOW, Attorney-General, for The State.
1. No exception being taken during the progress of the trial to the admission of evidence, or to the giving or refusing instructions, it is too late to raise those questions on the motion for a new trial. Kilgore v. Bonic, 9 Mo. R. 291. 2. The motion for a new trial came too late, being made after the motion in arrest--the latter admits the verdict to be good and overrules the former. 4 Barn. & Cres. 160 (10 Eng. Com. L. R. 301); 2 Salk. 647. 3. The motion in arrest was properly overruled. The carnal knowledge of a female under ten years of age, is declared to be rape by our statute, and the word “ravish” as used in the indictment, applies equally to the one as to the other kind of rape. Rev. Code, p. 348, § 26. 4. Should it be held that the motion for a new trial was made at the proper time, then, no exceptions being taken during the progress of the trial, the only question, if any, which can be considered by this court, is as to the sufficiency of the evidence. This the jury were peculiarly fitted to decide under the peculiar circumstances of this case. The chief witness was a child but little over nine years old, and of her evidence-- the language used by her--her manner of testifying--the other circumstances attending the act--the motive and conduct of the defendant--a jury is especially qualified to judge. If there is no evidence on which to convict, or if the evidence was clearly insufficient, an instruction to that effect should have been asked. If there was sufficient evidence to leave the question of guilt to the jury, this court will not interfere.
a1
Samuel J. McComas was indicted at the July term, 1847, of the Criminal Court for the county of St. Louis, under the 26th section of the 2nd article of the law concerning Crimes and Punishments, Rev. Code, 1845, p. 348. Upon a trial in said court he was found guilty and sentenced to three years' imprisonment in the penitentiary. He first moved in arrest of judgment, and his motion being overruled, he then moved for a new trial, which being also overruled by the court, he excepted, and prayed an appeal to this court, which was granted.
The indictment charges that the defendant late, &c., with force, &c., at, &c., in and upon one Mary L. Young, being then and there a female child under the age of ten years, to-wit: of nine years, in the peace of the State then and there being, carnally, unlawfully and feloniously, did then and there make an assault, and her, the said Mary L. Young, then and there did beat, wound and ill-treat, with the intent, her, the said Mary L. Young, then and there carnally, unlawfully and feloniously to ravish, and carnally and feloniously...
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