State v. Berry
| Decision Date | 12 March 1951 |
| Docket Number | No. 1,No. 42270,42270,1 |
| Citation | 361 Mo. 904,237 S.W.2d 91 |
| Parties | STATE v. BERRY |
| Court | Missouri Supreme Court |
Emanuel Williams, I. Joel Wilson, St. Louis, of counsel, for appellant.
J. E. Taylor, Atty. Gen., William A. Wear, Asst. Atty. Gen., for respondent.
Life sentence for assault with intent to ravish; charged under the habitual criminal section. Sec. 556.280, R.S.1949. Defendant has appealed.
Defendant offered no evidence. The State's evidence was that the prosecuting witness, an unmarried white girl, 21 years old, was going to work at night on a streetcar. Her work was at the Purety Box Company on Pine Street in St. Louis, from 12:30 A. M. to 9:30 A. M. When she 'raised up and rang the bell' for the 22nd Street stop on Olive, someone behind her 'just jumped up all of a sudden, rang the bell and walked over to the door.' She turned around and saw a colored man whom she later identified as the defendant. She got off, crossed to the east side of 22nd Street, and walked south. The man followed on the west side. When she got to the mouth of the alley, about halfway between Olive and Pine, she saw the man coming over the curb. He tripped her, and grabbed hold of her arm. She jerked loose once but he grabbed her again and she started screaming. She said: She said defendant had one knee on her thigh; that her skirt was ripped and torn up the front, and that she was trying to get his hand off her mouth so she could scream.
Two police officers cruising in a police car nearby heard a woman scream and turned their car into the alley. They saw defendant over her, 'and she was violently waving her arms.' Defendant 'immediately raised up when the lights of the car came upon him; he jumped to his feet and he commenced running eastward.' One of the officers ran after him and captured him before he got out of the alley. The prosecuting witness was taken to the City Hospital and was treated for a bruise on her cheek that 'was sore for three or four days after that.' Her ankle was also bruised where defendant had stepped on it. She was able to go to her work about 2:00 A. M.
Defendant's contentions which must be sustained are: the verdict is not responsive to the charge in the information and the punishment of life imprisonment is excessive and unauthorized by law under the verdict returned, without a finding of malice aforethought and of a prior conviction. The Attorney General's brief also concedes that Instruction No. 1, authorizing punishment of life imprisonment leaves out an essential element, namely, that the assault was made by 'means or force likely to produce death or great bodily harm.' Likewise, the information failed to make any such allegation.
We have two statutes which may apply to attempt to rape, 559.180 and 559.190, R.S.1949, which are as follows:
'559.180. Every person who shall, on purpose and of malice aforethought, shoot at or stab another, or assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to kill, maim, ravish or rob such person, or in the attempt to commit any burglary or other felony, or in resisting the execution of legal process, shall be punished by imprisonment in the penitentiary not less than two years.
Both of these sections were in the criminal code of 1835. R.S.1835, p. 171; but the maximum punishment was ten years until 1919. See Laws 1919, p. 258. We have held that the words 'rape' and 'ravish' are synonymous terms. State v. Meinhart, 73 Mo. 562, loc.cit. 567. The distinction between these two statutes on attempt to rape is in the means or force used and the existence or lack of malice aforethought. In Humphries v. State, 1838, 5 Mo. 203, this Court held the jury should have been instructed (in a case under 559.180) 'that unless they found that the assault was made with weapons (means or force) likely to produce great bodily harm, they should acquit defendant.' It was also held that the evidence in that case was only sufficient to make a case under Sec. 559.190. Of course, it is not an essential element...
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State v. Moorer
...263 Mo. 603, 173 S.W. 1051; State v. Wilkins, Mo., 100 S.W.2d 889. The words 'rape' and 'ravish' are synonymous terms, State v. Berry, 361 Mo. 904, 237 S.W.2d 91, of wide usage and plain English which have a well defined meaning. Webster's dictionary defines the word 'rape' in the sense use......
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...has been so long and so often approved by this court it is needless to cite cases in support of it. * * *' See, also, State v. Berry, Mo., 237 S.W.2d 91; State v. Abbott, Mo., 245 S.W.2d 876. The contention is An assignment is also made of error in Instruction No. 6 on the credibility of wi......
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State v. Thomas
...263 Mo. 603, 173 S.W. 1051; State v. Wilkins, Mo., 100 S.W.2d 889. 'The words 'rape' and 'ravish' are synonymous terms, State v. Berry, 361 Mo. 904, 237 S.W.2d 91, of wide usage and plain English which have a well defined meaning. Webster's dictionary defines the word 'rape' in the sense us......
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