State v. Buster

Citation2 S.W. 834,90 Mo. 514
PartiesSTATE v. BUSTER.
Decision Date31 January 1887
CourtUnited States State Supreme Court of Missouri

Atty. Gen. Boone, for the State. Rea & Son and Mr. Parish, for appellant.

SHERWOOD, J.

The defendant was indicted under the provisions of section 1260, Rev. St. 1879, which is as follows: "If any guardian of any female under the age of eighteen years, or any other person to whose care and protection any such female shall have been confided, shall defile her, by carnally knowing her, [while she remains in his care, custody, or employment,] he shall, in cases not otherwise provided for, be punished by imprisonment in the penitentiary not exceeding five years, or by imprisonment in the county jail not exceeding one year, and a fine not less than one hundred dollars."

On being tried, he was found guilty, and his punishment assessed at two years' imprisonment in the penitentiary. At a previous term there had been a mistrial. The indictment was in this form: "The grand jurors of the state of Missouri, charged to inquire within and for the body of the county of Andrew and state aforesaid, upon their oath present and charge that Charles B. Buster, on the twentieth day of July, A. D. 1882, at the county of Andrew and state of Missouri, being then and there a person to whose care and protection one Hettie Jarvis, a female under the age of eighteen years, to-wit, of the age of sixteen years, had been and was then and there confided, her, the said Hettie Jarvis, unlawfully and feloniously did defile, by then and there, unlawfully and feloniously, carnally knowing her, and having carnal knowledge of her body; she, the said Hettie Jarvis, being then and there confided to the care and protection of him, the said Charles B. Buster, — against the peace and dignity of the state."

I have marked with brackets the addition made to the statute as it existed prior to its amendment. 1 Wag. St. 500, § 9. The sufficiency of the indictment was questioned in the trial court, and it is again questioned here.

Treating of the subject of the allegations necessary in an indictment, Mr. Bishop, in his admirable treatise, says: "The doctrine of the court is identical with that of reason, namely, that the indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted. This doctrine pervades the entire adjudged law of criminal procedure. It is made apparent to our understandings, not by a single case only, but by all the cases. Wherever we move in this department of our jurisprudence, we come into contact with it. We can no more escape from it than from the atmosphere which surrounds us." 1 Bish. Crim. Proc. § 81. Elsewhere the learned author observes: "The right of the accused person to have every element of his supposed crime — in other words, every individual thing which the law has specified as constituting any part of the foundation for its punishment — set down in allegation in the indictment is secured in this country by constitutional guaranties." "But the ...

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