State v. Dalton

• Decision Date: 16 November 1891
• Citation: 17 S.W. 700,106 Mo. 463
• Parties: STATE v. DALTON.
• Court: Missouri Supreme Court

17 S.W. 700

106 Mo. 463

STATE v. DALTON.

Supreme Court of Missouri, Division No. 2.

November 16, 1891.

RAPE — INDICTMENT — EVIDENCE — BILL OF EXCEPTIONS.

1. Where an indictment for rape contains two counts, — one charging that defendant ravished "one Margie E. Mooney, a female child under twelve," and the other that defendant ravished "one Margie E. Mooney," — and every fact necessary to constitute the crime is clearly charged, though the counts are run together in one sentence, and are without such punctuation as would indicate the end of one and the beginning of the other, the indictment sufficiently charges each offense under Rev. St. Mo. 1879, § 1253, defining rape to be "either by carnally and unlawfully knowing any female child under the age of twelve years, or by forcibly ravishing any woman of the age of twelve years, or upwards."

2. Where the oral evidence in a case is written out in full, and is indorsed as correct by the trial judge, and the bill of exceptions is in skeleton form, reciting that the evidence is attached thereto, and calling for its insertion therein, the evidence is properly preserved.

3. On a trial for rape, evidence showing merely that defendant got into the bed of the complaining witness, and while there took indecent liberties with her, is insufficient to justify conviction, since penetration is not shown.

Appeal from circuit court, Douglas county; W. I. WALLACE, Judge. Reversed.

R. C. Dalton was convicted of rape, and appeals.

M. B. Clarke, for appellant. John M. Wood, Atty. Gen., for the State.

MACFARLANE, J.

Defendant was indicted in two counts by the circuit court of Oregon county for rape upon Margie E. Mooney. A change of venue was taken by defendant to Douglas county, where the case was tried, and defendant convicted on the second count, and sentenced to five years in the penitentiary.

1. The first objection made in this court is directed against the sufficiency of the indictment, which contained two counts, making the charge that the defendant, R. C. Dalton, at and in the county aforesaid, on the 1st day of August, 1887, in and upon the body of one Margie E. Mooney, a female child under the age of 12 years, then and there being, unlawfully and feloniously did make an assault, and her, the said Margie E. Mooney, then and there unlawfully, forcibly, and feloniously did ravish and carnally know, against the peace and dignity of the state, and the grand jurors aforesaid, summoned from the body of the county of Oregon, aforesaid, duly impaneled, sworn, and charged as aforesaid, upon their oath aforesaid, do further present and charge that one R. C. Dalton, late of the county aforesaid, at and in the county aforesaid, on the 1st day of August, 1887, in and upon the body of one Margie E. Mooney, then and there unlawfully, forcibly, without her consent, and against her will, feloniously did ravish and carnally know, etc. The commission of this offense is defined by section 1253, Rev. St. 1879, to be "either by carnally and unlawfully knowing any female child under the age of twelve years, or by forcibly ravishing any woman of the age of twelve years or upwards." While the two counts in the indictment are inartificially run together, in one sentence, and are without such punctuation as would indicate the end of the one and the beginning of the other, a comparison of the charges therein made with the provisions of the statute show that every essential fact necessary to constitute the crimes is clearly charged. The indictment must be held to sufficiently charge each offense. State v. Hatfield, 72 Mo. 520; State v. Meinhart, 73 Mo. 562.

2. Objection is made by the state to the consideration of the oral testimony, on the ground that it was not properly preserved by bill of exceptions. This bill is in the skeleton form, calling for the insertion of the evidence as taken and transcribed by the stenographer. The question here presented has been considered by this court in some recent cases,¹ and from these decisions, as also from the statutes defining the duties of the official stenographers,¹ and from the recognized rules of practice allowing skeleton bills to authorize the insertion in the record of such papers as are on file, and such documentary evidence as is sufficiently identified, we draw the conclusion that a call for the insertion of the evidence in the skeleton bill will be sufficient to authorize the clerk to copy it into and make it a part of the record when the transcript of the evidence, as made by the stenographer, has been examined and approved by the judge, and has been inserted or attached to the bill of exceptions. State v. Wear, 101 Mo. 414, 14 S. W. Rep. 115; Tipton v. Renner, (Mo. Sup.) 16 S. W. Rep. 668. The practical application of this rule can work no hardship, under the liberal provisions of the statute now in force authorizing the court to grant time in vacation in which to prepare and file bills of exceptions. Rev. St. 1889, § 2168. The bill of exceptions in this case recites that the evidence, as taken by the stenographer, is attached thereto, and calls for its insertion therein. The evidence is also indorsed by the judge of the court, under his hand, as follows: "The above is a correct copy of the testimony." Under the rule herein deduced the evidence was properly preserved.

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