State v. Bell

• Decision Date: 06 March 1906
• Citation: 91 S.W. 898,194 Mo. 264
• Parties: STATE v. BELL.
• Court: Missouri Supreme Court

91 S.W. 898

194 Mo. 264

STATE v. BELL.

Supreme Court of Missouri, Division No. 2.

March 6, 1906.

RAPE—CONVICTION OF ATTEMPT—WHEN AUTHORIZED.

Under Rev. St. 1899, § 2361, providing that no person shall be convicted of an assault with intent to commit an offense when the offense attempted was perpetrated in pursuance of such attempt, one cannot be convicted of an assault with intent to commit rape where the evidence of the prosecutrix, if credited, shows that the crime of rape has actually been committed, notwithstanding sections 2369, 2370, authorizing the conviction of a lower offense than that charged, and providing that the jury may find defendant not guilty of the offense charged, and find him guilty of any offense necessarily involved in that charged.

Appeal from Circuit Court, Shannon County; Wm. N. Evans, Judge.

Samuel Bell was convicted of an assault with intent to commit rape, and he appeals. Reversed.

L. B. Shuck and James Orchard, for appellant. The Attorney General and N. T. Gentry, for the State.

GANTT, J.

On February 18, 1904, the prosecuting attorney of Shannon county filed an information in the office of the clerk of the circuit court of said county, duly verified, wherein he charged the defendant with having on the 20th of January, 1904, at the county of Shannon, in and upon one Alice Nichols, a female child under the age of 14 years, unlawfully, violently, and feloniously made an assault, and her, the said Alice Nichols, then and there unlawfully and feloniously did carnally know and abuse, against the peace and dignity of the state. The defendant was arrested, and at the March term, 1904, of said court, was duly arraigned and pleaded not guilty. A trial was had at said March term, which resulted in a mistrial. At the September term, 1904, of said court, defendant was again put upon his trial, and another mistrial resulted. At the March term, 1905, the prosecuting attorney elected to prosecute defendant for an assault with intent to commit a rape, and thereupon defendant was rearraigned and pleaded not guilty, and on this charge defendant was at said term tried and convicted of an attempt to rape, and his punishment assessed at two years in the penitentiary. Motions for a new trial and in arrest of judgment were duly filed, heard, and overruled, and appeal granted to this court. It would serve no good purpose to spread upon the Reports of the decisions of this court the evidence adduced on the trial. It is sufficient to state for the purposes of our judgment that the question presented in this record is whether the testimony, fairly considered, is open to the contention of the state that whether the evidence established the completed offense of rape, or was merely an assault with intent to commit a rape, was doubtful, and therefore it was proper for the court to instruct on assault alone, as it did, or whether, as insisted by counsel for defendant, the testimony established, if anything, a fully consummated crime of rape. We have carefully considered all the evidence in this case, and have reached the conclusion that without the testimony of the prosecutrix there could have been no conviction of either rape or assault to commit a rape, and if her evidence is to be credited then the offense of rape was fully perpetrated within the meaning of the law and our adjudications. Moreover, the...