State v. Frank

• Citation: 103 Mo. 120,15 S.W. 330
• Parties: STATE v. FRANK.
• Decision Date: 10 February 1891
• Court: United States State Supreme Court of Missouri

15 S.W. 330

103 Mo. 120

STATE v. FRANK.

Supreme Court of Missouri, Division No. 2.

February 10, 1891.

CRIMINAL LAW — ATTEMPT — SODOMY.

1. Under Rev. St. Mo. 1879, § 1655, providing that the jury or court may find defendant not guilty of the offense charged, but guilty of any offense the commission of which is necessarily included in that charged, a conviction may be had for an attempt to commit a crime under an indictment for the actual perpetration of the offense. Overruling State v. Johnson, 91 Mo. 444, 3 S. W. Rep. 868. Distinguishing State v. Burk, 89 Mo. 635, 2 S. W. Rep. 10.

2. Rev. St. Mo. 1879, § 1539, fixes the punishment for the crime of sodomy. Id. § 1645, provides that "every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing it, upon conviction thereof" shall be punished, etc. Held, that an attempt to commit sodomy is a crime in itself, and punishable as such.

Appeal from circuit court, Andrew county; C. A. ANTHONY, Judge.

Booher & Williams, for appellant. The Attorney General, for the State.

MACFARLANE, J.

Defendant was indicted for the crime of sodomy. Upon a trial under the indictment the evidence tended to prove an unsuccessful attempt to commit the offense charged. The jury was instructed "that, if defendant made an attempt to copulate, or have intercourse with said dog, and in such attempt did any act towards the commission of said offense, and failed in the perpetration of said offense, or was prevented or intercepted in executing the same, then and in that case the jury will find the defendant guilty of an attempt to commit the offense charged, and so state in their verdict, and assess his punishment at imprisonment in the penitentiary for not less than two years." The jury found defendant guilty of an attempt to commit the crime charged, and fixed his punishment at two years' imprisonment in the penitentiary, and judgment was entered accordingly, from which defendant prosecutes his appeal.

1. It is contended by defendant's counsel that sections 1654, 1655, and 1927, Rev. St. 1879, do not apply to offenses of this character, and, unless defendant had been found guilty of the actual commission of the crime charged, he should have been acquitted. Section 1539 fixes the punishment of the crime of sodomy, and section 1645 provides that "every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing it, upon conviction thereof" should punished as therein provided. There can be no doubt, under this section, that an attempt to commit the offense of sodomy is a crime in itself, and punishable as such. So it was also at common law. 2 Bish. Crim. Law, § 1174; 1 Russ, Crimes, 939; 1 Bish. Crim. Law, § 689; Rex v. Hickman, 1 Moody, 34; Reg. v. Rowed, 6 Jur. 396.

2. Defendant's counsel insists further that, though the attempt be a crime in itself, a conviction cannot be had therefor under an indictment for the actual perpetration of the offense, and cite confidently as authority for their contention the cases of State v. Johnson, 91 Mo. 444, 3 S. W. Rep. 868, and State v. Burk, 89 Mo. 635, 2 S. W. Rep. 10. These cases, it is contended, decide that sections 1654, 1655, and 1927 are only applicable to those crimes to which the law has fixed different degrees. The opinion in the case of State v. Johnson gives strong ground for the contention; but if the court in that case intended to decide that section 1655 has no application to cases other than these of which there are different degrees, which it strongly intimates, we are not willing to give it our approval, or to follow it. There can be no doubt that sections 1654 and 1927 do only apply to that class of cases of which there are different degrees. Section 1655 is much broader in its scope, and was evidently intended to apply to another class of offenses altogether; otherwise it would be entirely superfluous. The latter clause of the section provides that in all other cases "the jury or court trying the case may find the defendant not guilty of the offense as charged, and find him guilty of any offense the commission of which is necessarily included in that charged against him." The learned judge who wrote the opinion in the case of State v. Johnson, supra, draws his conclusion from what he supposed had been decided in the case of State v. Burk, 89 Mo. 635, 2 S. W. Rep. 10. An examination of that case will show that the decision was misconstrued; in fact, as we read the opinion, it decides, as to the scope of section 1655, the very reverse, and that it applies only to cases in which there are no degrees fixed by law. In that case the indictment was under section 1262, for felonious assault with intent to kill, and defendant was found guilty of the lesser offense, under section 1263. The question in the case was whether that could be done, defendant insisting that a law justifying a conviction for a different offense than the one charged would be unconstitutional. To meet this objection the court held that the offenses described in sections 1262 and 1263 were distinct offenses, and not different degrees of the same offense; and that by virtue of section 1655 defendant was...