State v. Barnes
| Decision Date | 13 March 1920 |
| Docket Number | No. 21894.,21894. |
| Parties | STATE v. BARNES. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Newton County; Charles Henson, Judge.
Ernest Howard Barnes was convicted of having carnal knowledge of a girl between 15 and 18 years of age, and he appeals. Reversed and remanded.
On October 9, 1918, the prosecuting attorney of Newton county, Mo., filed in the circuit court of said county an information, which, without formal parts, reads as follows:
On October 14, 1918, defendant waived formal arraignment and entered his plea of not guilty.
The case was tried before a jury on February 28, 1919, and on said date the following verdict was returned:
Defendant in due time filed his motions for a new trial and in arrest of judgment. Both motions were overruled, sentence pronounced on defendant, and judgment entered on the verdict aforesaid. In due time and form, defendant was granted an appeal to the Supreme Court. His counsel have filed a brief in this court, the first page of which contains the following:
The evidence of the state tends to show that the sexual intercourse complained of occurred in Newton county, Mo., on February 25, 1917; that Edith J. Cherry, the prosecutrix, was then over 15 years of age and under 18 years of age; that she had never had sexual intercourse with any one prior to said date; that as a result of above act of sexual intercourse the prosecutrix, on November 24, 1917, gave birth to a baby girl; that defendant was the father of said child; that defendant on said 25th day of February, 1917, was over the age of 17 years; that prosecutrix was an unmarried female at the time of trial, and had never been married.
The evidence of defendant tended to contradict that of respondent, except as to defendant's age. Appellant likewise offered testimony tending to show that prior to February 25, 1917, the reputation of the prosecutrix in that neighborhood for chastity was bad. He likewise offered testimony tending to show that on February 25, 1917, he was in Oklahoma, etc.
Appellant, in his abstract of the record, at page 14, says:
"As no question is raised by the defendant as to the giving or refusing of instructions, they are not set out herein."
We have examined the instructions given by the court, and find that they fairly, correctly, and fully cover all the issues in the case.
Such other matters, appearing of record, as may be necessary, will be considered in the opinion.
M. E. Benton and H. Ruark, both of Neosho, for appellant.
Frank W. McAllister, Atty. Gen., and Lewis H. Cook, Special Asst. Atty. Gen., for the State.
BAILEY, C. (after stating the facts as above).
1. Appellant, in his motion in arrest of judgment, as well as in his brief on file here, challenges the sufficiency of the information heretofore set out. As the act complained of is said to have occurred on February 25, 1917, the validity of the information will have to be determined under section 4472, R. S. 1909, as amended by the Act of 1913, at pages 218, 219, which reads as follows:
"If any person over the age of seventeen years shall have carnal knowledge of any unmarried female of previous chaste character, between the ages of fifteen and eighteen years of age, he shall be deemed guilty of a felony, and upon conviction shall be punished by imprisonment in the penitentiary for a term not exceeding five years, or by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than one month nor more than six months, or by both such fine and imprisonment, in the discretion of the court."
In passing upon the validity of foregoing information, we should keep in mind section 22 of article 2 of our Constitution, which provides, among other things, that in criminal prosecutions the accused shall have the right "to demand the nature and cause of the accusation." In other words, it provides that the information shall specifically bring the defendant within all the material words of the statute, for it is the inflexible rule in criminal pleading that in all indictments or informations for felonies nothing can be left to intendment or implication. State v. Wade, 267 Mo. loc. cit. 256, 183 S. W. 598; State v. Timeus, 232 Mo. 177, 135 S. W. 26; State v. Keating, 202 Mo. loc. cit. 204, 100 S. W. 648; State v. Birks, 199 Mo. loc. cit. 271, 97 S. W. 578; State v. Meysenburg, 171 Mo. 1, 71 S. W. 229; State v. Thierauf, 167 Mo. 429, 67 S. W. 292; State v. Hagan, 164 Mo. 654, 65 S. W. 249; State v. Furgerson, 152 Mo. 92, 53 S. W. 427; State v. Evans, 128 Mo. 406, 31 S. W. 34; State v. Austin, 113 Mo. loc. cit. 543, 21 S. W. 31; State v. Buster, 90 Mo. loc. cit. 518, 2 S. W. 834; State v. Gabriel, 88 Mo. loc. cit. 642; State v. Hayward, 83 Mo. loc. cit. 304, and cases cited; Schramm v. People, 220 Ill. 16, 77 N. E. 117, 5 Ann. Cas. 111; Hubert v. State, 74 Neb. 222, 104 N. W. 276, 106 N. W. 774; Wharton's Grim. Pl. & Prac. (9th Ed.) § 220; 1 Bishop's Crim. Procedure, §§ 81, 86, 88, 519.
Reverting to the act of 1913, page 219, we find that the information must, in order to meet the requirements of the law, specifically show the following: (1) That the person charged must have been over 17 years of age when the alleged offense was committed; (2) that the person charged had carnal knowledge of an unmarried female of previous chaste character; (3) that the latter, at the time of the offense, was between the ages of 15 and 18 years. Tested by the authorities heretofore cited, the information before us Is fatally defective, in failing to allege that defendant, on February 25, 1917, was over the age of 17 years. The averment that defendant on said date was over 16 years of age was not equivalent to an allegation that he was then over 17 years of age. He may have been over 16 at said date, and yet less than 17 years of age. The information would have been as valid, without mentioning defendant's as to have stated it in the language of the complaint. If an information can be upheld without prerequisite No. 1, supra, then either of the other two requirements, or both, might be dispensed with for the same reason. The defendant is charged with statutory' rape, and has been convicted on an information which does not contain one of the material averments necessary to constitute the offense.
It is suggested in the brief of respondent that the testimony shows defendant was over 17 years of age on February 25, 1917, and that he was not injured by reason of the failure of the complaint to so allege. In support of above suggestion, we are cited to State v. Allen, 267 Mo. 49, 183 S. W. 329, and State v. Volz, 269 Mo. 194, 190 S. W. 307. We do not think the facts in either of the above cases are similar to those at bar.
In State v. Allen, the information was filed on February 5, 1914, after section 4472, R. S. 1909, was amended by the act of 1913, pages 218, 219. The prosecutrix was assaulted, according to the information, in March, 1913, while section 4472, supra, was still the law of the state. The information alleged that defendant, at the time of said assault, was over 17 years of age, while the prosecutrix was then alleged to be between 15 and 18 years of age. Now, the information having alleged, and the evidence having disclosed, that defendant in the Allen Case was over 17 years of age at the time of the offense, he was clearly brought, so far as his age is concerned, within the provisions of both section 4472, supra, and the amendatory act of 1913. The information charged that the prosecutrix, at the date of the assault, was between 15 and 18 years of age. This was a sufficient allegation as to her age, under either section 4472 or the present law. The evidence...
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