State v. Baker
| Decision Date | 14 February 1955 |
| Docket Number | No. 44228,No. 2,44228,2 |
| Citation | 276 S.W.2d 131 |
| Parties | STATE of Missouri, Respondent, v. Irby John BAKER, Appellant |
| Court | Missouri Supreme Court |
Morris A. Shenker, Sidney M. Glazer, St. Louis, for appellant.
John M. Dalton, Atty. Gen., Donal D. Guffey, Asst. Atty. Gen., for respondent.
BARRETT, Commissioner.
The appellant, Irby John Baker, has been found guilty of an offense under the statutes relating to rape, V.A.M.S. Secs. 559.190, 559.260, and sentenced to three years' imprisonment. As any reasonable jury could find, the fact was that on January 26, 1952, Baker, then aged sixty-two years, had sexual intercourse with Callista, age eight. With this simple fact and the innumerable precedents in similar circumstances it is not apparent how or why the case and this appeal became so perplexingly complicated.
The indictment charges that Baker 'in and upon one Callista * * * unlawfully and feloniously did make an assault, with intent her, the said Callista * * * then and there unlawfully, forcibly and against her will, feloniously to ravish and carnally know * * *.' The principal instruction submitted that Callista 'was on said date a female child under sixteen years of age' and that Baker 'did make an assault with the intent to unlawfully and feloniously ravish and carnally know the said Callista * * * and that he did any act or acts that were suited and adapted to carrying out or into execution a design to ravish and carnally know the said Callista * * * with the unlawful and felonious intention on the part of said defendant, Irby John Baker, to ravish and carnally know said Callista * * *.' The instruction also defined 'attempt to rape' and 'attempt to carnally know.' In addition, there was an instruction which informed the jury that if they found that Callista was under the age of sixteen years 'then her consent to or failure to resist or make an outcry to any act or acts constituting an assault to ravish and carnally know her would constitute no defense in this case.' The verdict of the jury was 'We, the jury in the above entitled cause, find the defendant guilty of assault with intent to ravish and carnally know, as charged * * *.'
In addition to other objections the appellant complains, both here and in his motion for a new trial, that the court erred in not sustaining his motions for an acquittal for the reason that the evidence is insufficient to sustain a conviction. Specifically his claim is that the indictment charges an assault with intent to commit forcible rape and does not allege Callista's age or that she was under the age of consent, and 'The issue, therefore, is whether under an indictment charging assault with intent to commit forcible rape a conviction for an assault with intent to commit statutory rape can be sustained.' It is claimed, since the charge is of an assault with intent to commit forcible rape and there is no statement in the indictment of the child's age or that she is under the age of consent, that a conviction cannot be sustained unless there is also proof of force and lack of consent. In short, the claim is that there is a fatal variance in the indictment and the proof. In this connection it is said that the principal instruction was prejudicially erroneous for the reason that it did not hypothesize the crime charged in that it did not require force, and it does not hypothesize the facts constituting assault with intent to ravish. The instruction on consent, failure to outcry or resist is likewise criticized in detail. And, it is urged that the verdict finding the defendant guilty as charged is not responsive to the evidence as there is no evidence in this case showing an assault with intent to forcibly ravish Callista.
Under our statutes rape is either carnal knowledge of a female child under the age of sixteen years or the forcible ravishment of any woman over the age of sixteen. V.A.M.S. Sec. 559.260. It is not necessary to say whether the two constitute separate, independent offenses, the important thing 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 over the age of sixteen or to have carnal knowledge of a child under the age of sixteen is likewise an offense. State v. Wray, 109 Mo. 594, 19 S.W. 86; State v. Gilreath, Mo., 267 S.W. 880. But in all the instances when the victim is under the age of sixteen it is necessary to allege and the indictments and informations in the innumerable cases have stated the fact of the child's age or that she was under sixteen. State v. Hughes, 258 Mo. 264, 167 S.W. 529; 75 C.J.S., Rape, Secs. 38(b), 39(d), 43(e), pp. 501, 504, 511. Once the offense, the attempt or the assault is alleged to have been committed upon a child under the age of sixteen force, consent and failure to outcry become immaterial even though force may be shown in some instances. State v. Bowman, 272 Mo. 491, 199 S.W. 161; State v. Davis, Mo., 190 S.W. 297; State v. Richardson, 349 Mo. 1103, 163 S.W.2d 956; State v. Rusow, Mo., 106 S.W.2d 429. The indictment in this case alleges force and it does not allege Callista's age or the fact that she was under sixteen, if it had alleged her age the fact of force could be ignored as surplusage. State v. Long, 341 Mo. 766, 108 S.W.2d 388; State v. Meinhart, 73 Mo. 562; McComas v. State, supra.
The questions presented by the circumstances of this record, the indictment charging force but failing to allege the child's age or that she was under the age of consent, the principal instruction omitting force but submitting that she was under the age of sixteen years, the verdict finding the defendant guilty of 'assault with intent to ravish and carnally know, as charged,' have not arisen in any jurisdiction in years and never before in this state. Heretofore in other jurisdictions it has been considered a fatal variance to allege an attempt or an assault with intent to rape by force without alleging the child's age and proving and submitting an attempt or an assault with intent to have carnal knowledge of a child under the age of consent. State v. Wheat, 63 Vt. 673, 22 A. 720; Bonner v. State, 65 Miss. 293, 3 So. 663; Warner v. State, 54 Ark. 660, 17 S.W. 6; State v. Johnson, 100 N.C. 494, 6 S.E. 61; Vasser v. State, 55 Ala. 264; 75 C.J.S., Rape, Sec. 45, p. 514. In addition there is the problem and question of former jeopardy in the event of a former trial and acquittal upon one of the charges under these statutes. Annotation 119 A.L.R. 1205; State v. Winger, 204 Minn. 164, 282 N.W. 819, 119 A.L.R. 1202; State v. Oakes, 202 Mo. 86, 100 S.W. 434. But it is neither necessary nor desirable to dispose of this appeal upon this rather narrow basis.
Upon this record there was no 'attempt to rape' and there was no 'attempt to carnally know' and there was no assault with intent to carnally know except as these offenses may be included in the completed, greater offense of rape by carnal knowledge of a child under the age of consent. As indicated in the beginning the fact was that Baker, then aged sixty-two years had sexual intercourse with Callista, age eight. The appellant, in testifying on his own behalf, denied the act of sexual intercourse and...
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