State v. Hammond
| Decision Date | 31 October 1882 |
| Citation | 77 Mo. 157 |
| Parties | THE STATE v. HAMMOND, Plaintiff in Error. |
| Court | Missouri Supreme Court |
Error to Dunklin Circuit Court.--Trial before C. L. KEATON, ESQ., Sitting as Special Judge.
REVERSED.
S. M. Chapman for plaintiff in error.
D. H. McIntyre, Attorney General, for the State.
The defendant was tried and convicted on a charge of rape, the indictment charging that the offense was committed on the person of Francis Sorrels.
It is insisted that the indictment is faulty on this ground and also on the further ground that it contains no allegation that the person on whom the alleged crime was committed was a woman.
Regarding the latter point, it need not be averred that the party injured is a woman. State v. Warner, 74 Mo. 83. The use of the relative pronoun “her,” and the use of the words “against her will,” sufficiently indicate the sex of the injured party.
And as to the name “Francis” being the name of a man, our statute cures any variance between the charge in the indictment and the evidence offered in its support; unless the trial court “shall find that such variance is material to the merits of the case, and prejudicial to the defense of the defendant.” State v. Wammack, 70 Mo. 410. Here the evidence abundantly shows that Francis Sorrels was a woman, and by that name was usually called, instead of the more proper appellation of Frances. There is nothing in the point.
We have read the evidence, and it must be confessed that it seems difficult to see how the jury could have found the defendant guilty, if careful consideration was given to all the evidence in the cause. But after such consideration on our part, we are not prepared to affirm that there was absolutely no evidence warranting a conviction. If it be true, as stated by one witness for the State, who was present at the preliminary examination, that the defendant had offered Francis Sorrels a dollar and she had refused it, but that when she found that the defendant was determined to gratify his passion, she then asked him for the dollar, it is quite certain that there was no rape committed.
And if it be true, as stated by another witness, that she asked defendant for the dollar, after the alleged injury was done her, it would be extremely improbable that such a crime had occurred. Subsequent assent, however, would not avoid the consequences of the crime, nor purge the defendant's guilt. But the testimony of the son of the woman, Charles Warner, did not reveal those features so damaging to the prosecution, in reference to a consideration being asked for by the injured party. True, he says he heard ““something said about a dollar,” but he did not remember what it was. It may be that the jury regarded his testimony sufficient to outweigh the testimony of the other witnesses; and this it was their province to do. State v. Warner, supr...
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Barker v. State
... ... The authorities, ... however, clearly sustain such an indictment as the one before ... us, and we pronounce it sufficient. Hill v. State, 3 ... Heisk. 317; State v. Hussey, 7 Iowa, 409; ... Taylor v. Com., 20 Grat. 825; State v ... Warner, 74 Mo. 83; State v. Hammond, 77 Mo ... 157. The other ground of contention is that, as the jury ... found a verdict for an assault with intent to commit rape, ... the circuit court was ousted of its jurisdiction, and further ... proceedings could [40 Fla. 189] only be had in the criminal ... court of record of Duval ... ...
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...or passion. State v. Lowe, 93 Mo. 547; State v. Cook, 58 Mo. 548; State v. Musick, 71 Mo. 401; State v. Warner, 74 Mo. 38; State v. Hammond, 77 Mo. 159. (2) The offered in evidence, for the purpose of impeachment, of the indictment and conviction of appellant, James Nelson, of larceny from ......
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...and against her will, feloniously did ravish, and carnally know." This point was ruled adversely to the defendant's contention in State v. Hammond, 77 Mo. 157; State v. Warner, 74 Mo. 83: State v. Armstrong, 167 Mo., loc. cit. 266 and 267, 66 S. W. 2. Defendant's motion to quash the indictm......
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