McComas v. State

Decision Date31 October 1847
Citation11 Mo. 116
PartiesMCCOMAS v. THE STATE.
CourtMissouri 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.

MCBRIDE, J.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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27 cases
  • The State ex rel. Klotz v. Ross
    • United States
    • Missouri Supreme Court
    • November 9, 1893
    ...that the former shall, in its natural order, take precedence of the latter, and thus prevent a waiver which otherwise would occur. McComas v. State, 11 Mo. 116. But at rate, if the rule is to prevail, it is as fatal to Houck's claim of receivership as to that of Klotz; with this exception, ......
  • First Nat. Bank v. Dunbar
    • United States
    • Missouri Court of Appeals
    • June 22, 1934
    ... ... 610; Hurt ... v. Ford, 142 Mo. 283; King v. Grocer Company, ... 188 Mo.App. 235; Blodgett v. Koenig, 284 S.W. 505; ... McComas v. The State, 11 Mo. 116; Gill v ... Farmers' & Merchants' Bank, 195 S.W. 538; Ruling ... Case Law, Vol. 15, p. 682. (2) A pledgee who sells ... ...
  • State v. Baker
    • United States
    • Missouri Supreme Court
    • February 14, 1955
    ...for the purposes of this opinion is that force is the essential element of one and age is the essential element of the other. McComas v. State, 11 Mo. 116; State v. Houx, 109 Mo. 654, 19 S.W. 35. It follows as of course that an attempt or an assault with intent to forcibly ravish a woman ov......
  • State v. Houx
    • United States
    • Missouri Supreme Court
    • February 2, 1892
    ... ... v. Parish, 104 N.C. 679. (3) The demurrer to the first ... count in the indictment should have been sustained, for the ... reason that it failed to affirmatively allege that Mattie ... Sidenstricker was "then and there being" a female ... child under the age of twelve years. McComas v ... State, 11 Mo. 116; State v. Reaky, 1 Mo.App. 3; S. C., ... 62 Mo. 40. (4) The demurrer to the second count in the ... indictment should have been sustained; it should have ... affirmatively alleged that Mattie Sidenstricker was "a ... woman above the age of twelve years," following the ... ...
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