State v. Billingsley, 55576
| Decision Date | 12 April 1971 |
| Docket Number | No. 55576,No. 1,55576,1 |
| Citation | 465 S.W.2d 569 |
| Parties | STATE of Missouri, Respondent, v. Wayne Earl BILLINGSLEY, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., J. Michael Jarrard, Asst. Atty. Gen., Jefferson City, for respondent.
George T. Sweitzer, Jr., Harrisonville, for appellant.
Defendant appeals from a conviction by a jury of assault with intent to commit rape, with a sentence of five years imposed by the court, the second offender act having been invoked. The charge on which defendant was tried, to quote from the first amended information, was that he 'did then and there wilfully, unlawfully and feloniously attempt to make an assault upon one Lou Colvin, a female person of the age of 10 years, and did then and there wilfully, unlawfully and feloniously attempt to rape, ravish and carnally know the said Lou Colvin; contrary to the form of the Statute 559.190 in such cases made and provided * * *.'
The case was submitted to the jury under an instruction calling for a finding that defendant 'did feloniously and unlawfully assault with intent to rape and carnally know Bonita Lou Colvin * * * then * * * under the age of 16 years * * *' At another point the instruction referred to 'the charge of assault with intent to commit rape in the second degree.' There was also an instruction on molesting. The jury's verdict was 'guilty of assault with intent to rape in the manner and form as charged in the information'.
Defendant attacks the verdict, sentence, and sufficiency of the information, contending the verdict and sentence are beyond the information, being for assault with intent to commit rape, whereas the information makes no such charge.
The contention must be sustained. The information changed defendant with attempted assault and attempted rape, alleged to be contrary to a statute, Sec. 559.190, RSMo 1969, V.A.M.S., which does not deal with either one. Defendant was convicted by the jury under an instruction submitting assault with intent to rape and was sentenced by the court accordingly. But attempted rape (Sec. 556.150, RSMo 1969) and assault with intent to rape (Sec. 559.190, RSMo 1969) are not the same, State v. Jenkins (Mo.Sup.) 411 S.W.2d 441, 443; Fox v. State, 3 Wkly.Law.Bull. 1147, 34 Ohio State 377; State v. Hetzel, 159 Ohio St. 350, 112 N.E.2d 369; Brown v. State, 7 Tex.App. 569; Burton v. State, 8 Ala.App. 295, 62 So. 394; State v. Hyams, 64 Utah 285, 230 P. 349; State v. Smith, 90 Utah 482, 62 P.2d 1110; State v. Gager, 45 Haw. 478, 370 P.2d 739, nor are they the same as attempted assault. Defendant was not charged with assault with intent to rape. The mention of Sec. 559.190 in the information--'contrary to the form of the Statute 559.190'--does not change the situation, because the statute on which an information is founded must be determined from the facts alleged in a...
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State v. Miller
...offense not charged in the information or indictment.” State v. Smith, 592 S.W.2d 165, 165 (Mo. banc 1979) (citing State v. Billingsley, 465 S.W.2d 569 (Mo.1971)). “An instruction that allows them to convict of that act or another which is not charged cannot stand.” State v. Pope, 733 S.W.2......
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State v. Goddard, 63476
...crime with which he is not charged. Wilkerson, 616 S.W.2d at 833; State v. Smith, 592 S.W.2d 165, 165 (Mo. banc 1979); State v. Billingsley, 465 S.W.2d 569, 570 (Mo.1971). Indeed, "[c]onviction upon a charge not made would be a sheer denial of due process." De Jonge v. Oregon, 299 U.S. 353,......
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State v. Miller
...of an offense not charged in the information or indictment." State v. Smith, 592 S.W.2d 165, 165 (Mo. banc 1979) (citing State v. Billingsley, 465 S.W.2d 569 (Mo. 1971)). "An instruction that allows them to convict of that act or another which is not charged cannot stand." State v. Pope, 73......
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State v. Gant
...he was charged. It is elementary law that an accused cannot be charged with one offense and convicted of another. State v. Billingsley, 465 S.W.2d 569, 570 (Mo.1971). Hence, the trial court was without jurisdiction to impose a sentence for armed criminal action and its judgment was not mere......