2 S.W. 834 (Mo. 1887), State v. Buster

Citation:2 S.W. 834, 90 Mo. 514
Opinion Judge:Sherwood, J.
Party Name:The State v. Buster, Appellant
Attorney:David Rea and T. H. Parrish for appellant. B. G. Boone, Attorney General, for the state.
Judge Panel:Sherwood, J. Norton, C. J., dissents.
Case Date:January 31, 1887
Court:Supreme Court of Missouri
 
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Page 834

2 S.W. 834 (Mo. 1887)

90 Mo. 514

The State

v.

Buster, Appellant

Supreme Court of Missouri

January 31, 1887

October, 1886

Appeal from Andrew Circuit Court. -- Hon. H. S. Kelley, Judge.

Reversed.

David Rea and T. H. Parrish for appellant.

The demurrer should have been sustained to the indictment. There is no allegation in the indictment that the prosecutrix was defiled by the defendant while she was, or remained in his care, custody or employment. The statute of 1879, the statute in force at the time of the alleged commission of the offence, amends the statute of 1865 by adding the words, "while she remains in his care, custody or employment." See R. S., 1865, p. 816, sec. 9; R. S., 1879, vol. 1, p. 222, sec. 1260. The indictment was drawn from the form given in Kelly's Criminal Law before the adoption of the statutes of 1879, and was, therefore, drafted without reference to said amendment. See Kelly's Criminal Law, p. 485, sec. 851. The author, in the revised edition of his work, concedes the insufficiency of the form given in his original edition, and suggests that the form of the indictment should be varied to correspond with the amended statute. See Revised or Supplemental Edition, p. 35, sec. 73. The offence, as it now stands, consists in a guardian or other person defiling a female, etc., who shall have been confided to his care, protection or employment, while she remains in his care, custody or employment. These facts, therefore, should have been stated in the indictment. It is charged in the indictment that the prosecutrix had been confided to the care and protection of the defendant, and that the defendant had defiled her, etc., but it is not charged that he defiled her while she remained in his care, custody or employment. We submit, therefore, that the demurrer should have been sustained. Rothschild v. Frensdorf, 21 Mo.App. 318-22; Moffatt v. Conklin, 35 Mo. 453.

B. G. Boone, Attorney General, for the state.

An indictment which sets forth all the facts necessary to constitute an offence, as created and defined by statute, is sufficient. State v. Anderson, 81 Mo. 78; State v. Madden, 81 Mo. 421. While the indictment, in the case at bar, does not employ the exact language of the statute in this, that it does not charge that defendant defiled the girl, "while she remained in his care, custody and employment," the substantial...

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