State v. Buster
| Decision Date | 31 January 1887 |
| Citation | 2 S.W. 834,90 Mo. 514 |
| Parties | The State v. Buster, Appellant |
| Court | Missouri Supreme Court |
October, 1886
Appeal from Andrew Circuit Court. -- Hon. H. S. Kelley, Judge.
Reversed.
David Rea and T. H. Parrish for appellant.
The demurrer should have been sustained to the indictment. There is no allegation in the indictment that the prosecutrix was defiled by the defendant while she was, or remained in his care, custody or employment. The statute of 1879, the statute in force at the time of the alleged commission of the offence, amends the statute of 1865 by adding the words "while she remains in his care, custody or employment." See R. S., 1865, p. 816, sec. 9; R. S 1879, vol. 1, p. 222, sec. 1260. The indictment was drawn from the form given in Kelly's Criminal Law before the adoption of the statutes of 1879, and was, therefore, drafted without reference to said amendment. See Kelly's Criminal Law, p. 485, sec. 851. The author, in the revised edition of his work, concedes the insufficiency of the form given in his original edition, and suggests that the form of the indictment should be varied to correspond with the amended statute. See Revised or Supplemental Edition, p. 35, sec. 73. The offence, as it now stands, consists in a guardian or other person defiling a female, etc., who shall have been confided to his care, protection or employment, while she remains in his care, custody or employment. These facts, therefore, should have been stated in the indictment. It is charged in the indictment that the prosecutrix had been confided to the care and protection of the defendant, and that the defendant had defiled her, etc., but it is not charged that he defiled her while she remained in his care, custody or employment. We submit, therefore, that the demurrer should have been sustained. Rothschild v. Frensdorf, 21 Mo.App. 318-22; Moffatt v. Conklin, 35 Mo. 453.
B. G. Boone, Attorney General, for the state.
An indictment which sets forth all the facts necessary to constitute an offence, as created and defined by statute, is sufficient. State v. Anderson, 81 Mo. 78; State v. Madden, 81 Mo. 421. While the indictment, in the case at bar, does not employ the exact language of the statute in this, that it does not charge that defendant defiled the girl, "while she remained in his care, custody and employment," the substantial language is used in charging that "he feloniously, carnally knew her and had carnal knowledge of her body, she, the said Hettie Jarvis, being then and there confided to the care and protection of him, the said Charles B. Buster," etc. The defendant clearly had such care and protection of the girl during her stay at his house as is contemplated by the statute. Sec. 1260, supra; Bish. Stat. Cr., sec. 632. Our statute is more general than that of Iowa on the same subject, where it is held that "those with whom a girl resides as a member of the family, and who have her wholly under their care and protection, have such legal charge of her person as to come within the provisions of the section under consideration." State v. Rabsuhl, 8 Iowa, 447. Our own Supreme Court, as early as 1839, under a statute substantially the same as the one now being considered, held that not only guardians were included, but all other persons to whose care or protection a girl had been confided. State v. Acuff, 6 Mo. 54; State v. Jones, 16 Kan. 608.
OPINION
The defendant was indicted under the provisions of section 1260, Revised Statutes, 1879, which is as follows: "If any guardian of any female under the age of eighteen years, or any other person to whose care or protection any such female shall have been confided, shall defile her, by carnally knowing her [while she remains in his care, custody or employment,] he shall, in cases not otherwise provided for, be punished by imprisonment in the penitentiary not exceeding five years, or by imprisonment in the county jail not exceeding one year, and a fine not less than one hundred dollars." On being tried he was found guilty and his punishment assessed at two years imprisonment in the penitentiary. At a previous term there had been a mistrial. The indictment was in this form:
"The grand jurors of the state of Missouri charged to inquire within and for the body of the county of Andrew and state aforesaid, upon their oath present and charge that Charles B. Buster, on the twentieth day of July, A. D., 1882, at the county of Andrew and state of Missouri, being then and there a person to whose care and protection one Hettie Jarvis, a female under the age of eighteen years, to-wit: of the age of sixteen years, had been, and was, then and there confided, her, the said Hettie Jarvis, unlawfully and feloniously did defile, by then and there unlawfully and feloniously, carnally knowing her and having carnal knowledge of her body, she, the said Hettie Jarvis, being then and there confided to the care and protection of him, the said Charles B. Buster, against the peace and dignity of the state."
I have marked with brackets the addition made to the statute as it existed prior to its amendment. 1 W. S. p. 500, sec. 9.
The sufficiency of the indictment was questioned in the trial court, and it is again questioned here. Treating of the subject of the allegations necessary in the indictment, Mr Bishop, in his admirable treatise, says: ...
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