State v. Ellis
| Decision Date | 31 October 1881 |
| Citation | 74 Mo. 385 |
| Parties | THE STATE v. MOSES ELLIS, Appellant. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Appeals.
REVERSED.
C. O. Bishop for appellant.
The court erred in instructing the jury that the appellant was guilty of incest if he had carnal knowledge of the girl, whether with or without her consent. People v. Harriden, 1 Parker Cr. R. 344; Croghan v. State, 22 Wis. 444; DeGroat v. People, 39 Mich. 124; State v. Thomas, 53 Iowa 214. Rape is the higher crime (being a capital offense) and is not merged in incest. The State has no right to charge incest, and then, upon the trial, confront the prisoner with proof of rape, which he could not have expected, and, relying upon the indictment, was not prepared to meet.
D. H. McIntyre, Attorney General, for the State.
It is not necessary to a conviction of incest that the offense should have been jointly committed. State v. Bullinger, 54 Mo. 142. The gravamen of the offense consists in sexual intercourse between persons within the prohibited degrees, and the fact that force is used in consummating it does not make it any the less the crime prohibited. Besides, the evidence does not show sufficient force to constitute rape under our statute, and for that reason the instruction, as applied to the facts of this case, could not have done defendant any injury, even if it be not the law.
The defendant was indicted for incest, and found guilty at the March term, 1881, of the St. Louis criminal court, and the judgment of that court having been affirmed by the court of appeals, he has appealed to this court. The alleged incest was the commission of fornication with Mary Belle Ellis, his daughter, and she testified that he had frequently had sexual connection with her, but that “he made her do it;” and that “she did not tell of it because afraid that he would beat her--that he threatened to beat her if she told any one.” At the time of the connection alleged in the indictment she was over twelve years of age. The crime alleged is punishable by imprisonment in the penitentiary for a term not exceeding seven years. The court instructed the jury that: “If defendant is the natural parent of the girl, Mary Belle Ellis, and at, etc., * * he did feloniously and incestuously commit fornication with her, by actually, and with full knowledge of the relationship, etc., having carnal knowledge of her person, whether with or without her consent, you will find him guilty of incest.”
By section 1253 the crime of rape is punishable by death or imprisonment in the penitentiary for a term not less than five years. The crime of incest is punishable by imprisonment in the penitentiary only. R. S., § 1538. The crime of rape is of a higher nature than that of incest, and, when the evidence proves the commission of rape, the party cannot be convicted of incest. The lower is merged into the higher crime. It was so held in People v. Harriden, 1 Parker Cr. C. 344; Croghan v....
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State v. Hamey
...Mo. 103, State v. Strattman, 100 Mo. 540, 13 S. W. 814, and State v. Lingle, 128 Mo. 528, 31 S. W. 20, all of which follow State v. Ellis, 74 Mo. 385, 41 Am. Rep. 321, in which it was ruled, on an indictment for incest, that, if it appeared that the sexual intercourse had been effected by f......
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The State v. Hamey
...incest the lesser and the latter was merged in the rape. The correctness of that decision is now challenged. In all of those cases except the Ellis case it was ruled that the jury could acquit on the ground that the crime of rape had been shown the jury must believe that if the defendant we......
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...Burdue v. Com., 144 Ky. 428, 138 S.W. 296, 298; State v. Hamey, 168 Mo. 167, 67 S.W. 620, 621, 631, 57 L.R.A. 846, overruling State v. Ellis, 74 Mo. 385 [which cited People v. Harriden, 1 Park.Cr.R. 344]; State v. Hughes, 108 N.J.L. 64, 154 A. 867, 868, reversed on other grounds 109 N.J.L. ......
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...159 Mo. 568; State v. Brannon, 55 Mo. 63; State v. Pitts, 57 Mo. 85; State v. Smith, 119 Mo. 439; State v. Craft, 72 Mo. 456; State v. Ellis, 74 Mo. 385. (b) Upon the evidence appellant was entitled to a verdict of acquittal. State v. Nettles, 153 Mo. 464; State v. Marshall, 47 Mo. 378; Sta......