State v. Hamey

• Decision Date: 17 December 1901
• Citation: 65 S.W. 946
• Court: Missouri Supreme Court
• Parties: STATE v. HAMEY.<SMALL><SUP>1</SUP></SMALL>

65 S.W. 946

STATE v. HAMEY.¹

Supreme Court of Missouri, Division No. 2.

December 17, 1901.

CONSTITUTIONAL LAW — RAPE — FIXING OF PENALTY BY COURT — STATUTORY RAPE — INDICTMENT — SUFFICIENCY OF EVIDENCE.

1. Rev. St. 1899, § 1838, declaring that in cases of statutory rape the punishment may be varied "in the discretion of the court," being a departure from St. 1835, p. 170, § 23, and Gen. St. 1865, p. 780, § 23, vesting discretion as to punishment in the jury, is in contravention of Const. art. 2, § 28, providing that the right of trial by jury "as heretofore enjoyed" shall remain inviolate.

2. Rev. St. 1899, § 1838, making the degree of punishment on conviction of statutory rape discretionary with the court, being unique in that respect, would seem to indicate that the substitution of the discretion of the court for that of the jury was regarded by the legislature as an essential feature of the act; and hence, as the provision is a violation of Const. art. 2, § 28, making the right of trial by jury inviolate, the objectionable portion of the section cannot be expurgated, and the remainder allowed to stand, but it is void in toto.

3. There can be no conviction under an indictment charging a violation of Rev. St. 1899, § 1838, punishing carnal intercourse with an unmarried female between the ages of 14 and 18 years, if it is proven that the intercourse was by force and without the consent of the female, which latter crime is punished by section 1837.

4. Prosecutrix lived with defendant's mother-in-law, in a house in the same yard, and only six rods distant from the house where defendant lived with his wife, family, and prosecutrix's father. Prosecutrix testified that defendant came to the house one evening, in the absence of his mother-in-law, but while she and defendant's family were present in the adjacent house, and had forcible carnal connection with prosecutrix. There was no disturbance audible at the other house, and prosecutrix made no complaint to either her father or foster mother until it became obvious that she was pregnant, when, in answer to a query of her foster mother, she stated that defendant had ravished her. At the time of the occurrence she testified that she was unable to cry out, because defendant held a pillow over her mouth; but after this was removed she made no outcry, but went out and sat on the porch "to cool off." She continued friendly relations with defendant, with whom she was well acquainted, and three witnesses, contradicted only by prosecutrix, testified that they had had sexual intercourse with prosecutrix prior to defendant's alleged crime. Held insufficient to support a conviction of rape.

Gantt, J., dissenting.

Appeal from criminal court, Buchanan county; B. J. Casteel, Judge.

John Hamey was convicted of rape, and appeals. Reversed.

Culver & Phillip, for appellant. The Attorney General, for the State.

SHERWOOD, J.

This appeal comes from Buchanan county, and was taken because defendant was convicted under an indictment bottomed on the violation of the prohibition contained in section 1838, Rev. St. 1899, and his punishment assessed at one month's imprisonment in the county jail, and the payment of a fine of $500. The cited section, enacted in 1895, is the following: "If any person over the age of sixteen years shall have carnal knowledge of any unmarried female, of previously chaste character, between the ages of fourteen and eighteen years of age, he shall be deemed guilty of a felony, and upon conviction shall be punished by imprisonment in the penitentiary for a term of two years, or by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than one month or more than six months, or by both such fine and imprisonment, in the discretion of the court." Immediately above the section quoted is section 1837 of the same revision, which reads in this way: "Every person who shall be convicted of rape, either by carnally and unlawfully knowing any female child under the age of fourteen years, or by forcibly ravishing any woman of the age of fourteen years or upward, shall suffer death, or be punished by imprisonment in the penitentiary not less than five years, in the discretion of the jury." The section last above mentioned has, with some modifications as to punishment, been on our statute books ever since section 23, p. 170, St. 1835, was enacted, and probably before that time. In 1879 section 1253 was enacted, and there an amendment occurred, which so amended section 23, p. 780, Gen. St. 1865, as to suffer the awarding of the penalty of death, and also added the words, "in the discretion of the jury." Such amendment made the law as it is to-day. But as far back as section 10, p. 639, 1 Rev. St. 1855, an offender whose offense was punishable by imprisonment in the penitentiary for a term not less than any specified number of years, and no limit to duration of such punishment declared, the offender might be imprisoned during his natural life, or for any number of years not less than those prescribed. Gen. St. 1865, p. 826, § 10; Rev. St. 1879, § 1660; Rev. St. 1889, § 3955; Rev. St. 1899, § 2375. So that those words, "in the discretion of the jury," seem to have added naught to the force and effect of the given section. The pertinency of these prefatory observations, and the citation of the above sections, will appear in the following investigation.

Defendant makes assertion that section 1838 is unconstitutional, in that it deprives defendant of the right of trial by jury as guarantied by section 28, art. 2, of our state's constitution, which declares: "The right of trial by jury, as [heretofore enjoyed], shall remain inviolate." The bracketed words show the difference between a corresponding section and article in the constitution of 1865 and the section above quoted, and the words added to the latter. It has been ruled respecting these words that whatever was the status of that right at the time the constitution of 1875 was adopted was the status referred to in that instrument. State v. Bockstruck, 136 Mo., loc. cit. 358, 38 S. W. 317, and cases cited; Ice Co. v. Tamm, 138 Mo. 385, 39 S. W. 791, and cases cited. In Michigan, the provision of the constitution of that state, similar to our own, is this: "The right of trial by jury shall remain." Under that provision a statute was challenged, as to its constitutionality, which authorized persons charged with cutting timber on state lands to be tried in some county other than that in which the offense was committed. Discussing that statute in the light of that constitutional provision, Judge Cooley characterized the act as not only tyrannical and oppressive, but manifestly in conflict with one of the plainest and most important provisions of the constitution. Proceeding further, that jurist observed: "The right is to remain. What right? Plainly, the right as it existed before, — the right to a trial by jury as it had become known to the previous jurisprudence of the state. Underwood v. People, 32 Mich. 1, 20 Am. Rep. 633. The right is not described here; it is not said what shall be its incidents; it is mentioned as something well known and understood under a particular name; and by implication, at least, even a waiver of its advantages is forbidden. If the accused himself cannot waive them, plainly, the legislature cannot take them away. The next section of the constitution repeats the guaranty of this method of trial `in every criminal prosecution'; and nothing is better settled on the authorities than that the legislature cannot take away a single one of its substantial and beneficial incidents." Swart v. People, 43 Mich., loc. cit. 448, 5 N. W. 635.

At common law the right of trial by jury consisted in the duty of the jury, if they found the defendant guilty, was to return into court a verdict either assessing his punishment in accordance with the law, or a general verdict of guilty, whereupon the court fixed the punishment. 4 Bl. Comm. 361. Not so, however, has the practice been in this state on that point from an early period. Thus the Statutes of 1835 provided: "Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, or assess a punishment not authorized by law, and in all cases of judgment on confession, the court shall assess and declare the punishment, and render judgment accordingly." St. 1835. p. 493, § 4; Rev. St. 1845, p. 883, § 4; 2 Rev. St. 1855, p. 1196, § 5; Gen. St. 1865, p. 852, § 5. With matters in this statutory posture, and with our jurisprudence on the point in hand settled by not infrequent decisions of this court, the constitution of 1875 was adopted, the effect of which adoption was to perpetuate and place beyond legislative interference any beneficial or favorable incident pertaining to the right of trial by jury as it existed at the time that constitution was adopted. Among those substantial, favorable, and beneficial incidents pertinent to such right was the coincident right to have the jury assess the punishment in all cases of felony. And, of course, the constitutional provision and guaranty that "the right of trial by jury as heretofore enjoyed shall remain inviolate," would apply as well to all newly-created felonies as to those in existence when the present constitution was adopted. This point has passed into precedent. Thus in the court of appeals of New York, it is said: "`Trial by jury, in all cases in which it has heretofore been used, shall remain inviolate forever,' is broad enough and efficacious enough to secure it. The expression, `in all cases in which it has heretofore been used,' is generic. It does not limit the right to the mere instances in which it had been used, but extends it to such new and like cases as might afterwards arise. For instance, felonies were triable only by juries. I do not doubt that...