State v. Bowers

• Citation: 144 S.W. 97,239 Mo. 431
• Parties: STATE v. BOWERS.
• Decision Date: 06 February 1912
• Court: Missouri Supreme Court

144 S.W. 97

239 Mo. 431

STATE v. BOWERS.

Supreme Court of Missouri, Division No. 2.

February 6, 1912.

CRIMINAL LAW (§ 814)—ASSAULT TO RAVISH—INTENT—INSTRUCTIONS.

In a prosecution for assault with intent to ravish a girl 13 years of age, where the evidence showed that prosecutrix was a willing victim, and there was no attempt by accused to consummate the act, the court erred in refusing to charge that, if the acts done by defendant were without intent to have carnal knowledge of prosecutrix, they then only amounted to indecent and lascivious conduct and did not constitute an attempt to rape.

Appeal from St. Louis Circuit Court; George C. Hitchcock, Judge.

John Bowers was convicted of assault with intent to ravish, and he appeals. Reversed.

Chas. P. Johnson and Silver & Dumm, for appellant. Elliott W. Major, Atty. Gen., and John M. Atkinson, Asst. Atty. Gen., for the State.

FERRISS, P. J.

The defendant was convicted in the circuit court of the city of St. Louis of assault with intent to ravish one Clara Steinmeitz, a girl under the age of 14 years. The testimony for the state tended to show that defendant, a man of 58 years of age, went to a room belonging to a friend of his on Franklin avenue, in St. Louis, with two girls, the prosecuting witness and one Irene Hennessey, a girl of 15 years; the prosecuting witness being at the time 13 years of age. The prosecuting witness testified that Irene Hennessey, the defendant, and herself were in this room, and that she was on the bed, when the following occurred: "Q. Now, with respect to you, when you were on the bed, where was he? When you were on the bed, Clara, how close to you was he? A. He got on top of me. Q. He got on top of you. Were his private parts exposed at that time? A. Yes, sir. Q. And how long did he lie on top of you? Gov Johnson: I object to that. I haven't heard her say that he lay on top of her. Mr. Harvey: She stated that. Mr. Griffin: She has just stated that. Gov. Johnson: Go ahead. By Mr. Griffin: Q. How long did he lie on top of you? A. About three minutes. Q. About three minutes? A. Yes, sir. Q. And then what did he do? A. Then he got up. Q. And what did he do then? A. He didn't do nothing. Q. Were his private parts exposed when he got up? A. Yes, sir. Q. Tell us what he did after he got up. What did he do? Explain to us. A. He didn't do nothing. Q. Well, were his clothes unbuttoned at the time he got up? A. Yes, sir. Q. Well, did he button them up, or what did he do? A. He buttoned them up." The prosecuting witness, upon being recalled on behalf of the defendant, testified as follows: "Q. At the time that you charged that you were on the bed with the defendant here, did you feel his privates against your body? A. No, sir. Q. At any time during that time did you find any dampness or wetness upon your legs? A. No, sir. Q. At the time when you were on the bed did you take down your drawers—unbutton your drawers? A. I told you that this morning. Q. That is what I believe you said that you did. Did you go right home after that? A. Yes, sir." There was evidence tending to show that the prosecuting witness was examined by a physician subsequently to this transaction, that she was unusually small for her age, and that there was no evidence of penetration. The evidence further tended to show that this defendant had met these two girls about a week before in this same room, at which time he took improper liberties of some kind with the Hennessey girl. Just how far he went it is hard to tell from the record. Whatever he did was done in the presence of the prosecuting witness, but he did nothing to her at that time. Defendant denies having had intercourse with either girl at either time, but admits that he did some "fooling" with the Hennessey girl.

It is insisted by defendant that the court should have given the following instruction offered by him: "The court instructs the jury that, if the acts as testified to by the witness were done by the defendant without the intention of having carnal knowledge of her, the prosecuting witness, then they only amounted to indecent and lascivious conduct, and, however reprehensible morally, did not constitute an assault to commit a rape."

We think, under the peculiar circumstances of this case, that this instruction should have been given. The rule adopted by the trial court in instructing in this case is the one approved in State v. Dalton, 106 Mo. 463, 17 S. W. 700, namely, that preparation and acts towards the accomplishment of his purpose, with the...