State v. Alcorn
| Decision Date | 19 January 1897 |
| Citation | 38 S.W. 548,137 Mo. 121 |
| Parties | The State v. Alcorn, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. John W. Wofford, Judge.
Affirmed.
Isaac B. Kimbrell for appellant.
(1) It is the duty of the trial court to instruct on the low grades of the offense which the evidence tends to prove. State v. Turlington, 102 Mo. 642. (2) Instruction number 9 does not define either an assault or a rape. Furthermore it is erroneous in that it assumes that the witness Ola B Sanders was under fourteen years of age. (3) The court should have instructed on common assault. State v. Banks, 73 Mo. 592; State v. Murphy, 14 Mo.App. 73.
R. F Walker, attorney-general, and Morton Jourdan, assistant attorney-general, for the state.
(1) It is complained that the court admitted illegal testimony on the part of the state; yet the record fails to show that any of the testimony offered on the part of the state, to which objection was made, was admitted. Inasmuch as allegations in motions for new trial unsupported by the record do not prove themselves, this will not avail the defendant. State v Foster, 115 Mo. 448. (2) A defendant charged with committing a crime will not be permitted to show his drunkenness either to excuse or mitigate the offense. State v. Murphy, 118 Mo. 7; State v. Riley, 100 Mo. 493; State v. Carter, 98 Mo. 176. (3) It is next complained that the court committed error in failing to instruct the jury upon all questions of law arising from the testimony. This is not true. The instructions given by the court covered every issue presented by the testimony and the indictment. However, if it were true, the defendant is in no position to complain, for the reason that he failed to except at the time to the action of the court in failing to so instruct the jury. State v. Paxton, 126 Mo. 500; State v. Cantlin, 118 Mo. 111. (4) Complaint is made of instruction number 9 given on the part of the state. This instruction was in the usual form, following the indictment and the statute, and is not subject to the criticism suggested by the appellant.
The testimony shows that the prosecutrix resided with her father at 3024 Harrison street, in Kansas City, Missouri; that on the eighth day of May, 1896, she attended the Longfellow public school at the corner of Twenty-ninth and Holmes streets, which was in the vicinity and a little northwest of her home; that upon the dismissal of school at noon, on the eighth, she went, as she was accustomed to do, to her home for lunch; that upon her return, at 12:30 o'clock, and after she had crossed Thirtieth street on Harrison, she noticed defendant sitting under a tree some eight or ten feet from the walk; that when she reached a point on the walk opposite to defendant she noticed that his pants were unbuttoned in front and his private parts exposed; that she became alarmed and attempted to run; that the defendant grabbed at her but missed her, then attempted to trip her by throwing his foot in front of her; that the defendant then grabbed her by the skirts, pulled up her dress and underclothing, when somebody in the neighborhood who saw it screamed. The defendant then released her and ran up Thirtieth street. After being pursued several blocks he was caught by some workingmen who were engaged at that time in the construction of a house near where the attempted rape occurred. The testimony shows that Mrs....
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