State v. Cofer

• Decision Date: 31 October 1878
• Citation: 68 Mo. 120
• Parties: THE STATE v. COFER, Plaintiff in Error.
• Court: Missouri Supreme Court

68 Mo. 120

THE STATE

v.COFER, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1878.

Error to Cape Girardeau Circuit Court.--HON. D. L. HAWKINS, Judge.

The indictment upon which defendant was tried, consisted of two counts. The first charged a rape upon a female under the age of twelve years; the second, an assault to commit a rape upon the same female. Both related to the same act. The jury returned a verdict, finding the defendant guilty as charged in the first count, but silent as to the second. The fifth instruction given for the State, but subsequently withdrawn by the court from the consideration of the jury, is as follows:

5. On the first count of the indictment the court instructs the jury that, if they believe from the evidence that the defendant, on the 7th day of June, 1877, or at any other time within three years before the finding of the indictment, and at the county of Cape Girardeau, and State of Missouri, did unlawfully and feloniously attempt to carnally know and abuse Anna Waldman, she being a female child under twelve years of age, and that he did any act toward the consummation of such offense, but failed in the perpetration thereof, the jury should find the defendant guilty of an attempt to commit rape upon the said Anna Waldman, and should assess his punishment at imprisonment in the penitentiary for a term not less than two years.

The first instruction, as given in its modified form for the defendant, is as follows:

1. That the proof of the crime of rape, or of carnally and unlawfully knowing and abusing a female child, must show that there was some degree of entrance of the male organ within the private parts of the female, and if the jury find from the testimony in this cause that the private parts of the child were not penetrated by defendant's private organ or penis, then the jury ought to acquit defendant of the crime of rape as charged in the first count of the indictment.

J. L. Smith, Attorney-General, for the State.

HENRY, J.

It will be observed that the indictment contained two counts, one for committing and the other for attempting to commit a rape. The jury found the defendant guilty on the first count, but returned no verdict on the second; and this, it is alleged, was an error for which the judgment should be reversed. The accused was put upon his trial on both counts, and his conviction on either amounted to an acquittal of the charge contained in the other. If found guilty of committing the rape he could...