State v. Hoag

• Decision Date: 07 February 1911
• Citation: 134 S.W. 509,232 Mo. 308
• Parties: STATE v. HOAG.
• Court: Missouri Supreme Court

134 S.W. 509

232 Mo. 308

STATE v. HOAG.

Supreme Court of Missouri, Division No. 2.

February 7, 1911.

1. CRIMINAL LAW (§ 1036) — OBJECTIONS — PRESENTATION BELOW.

Where accused did not object below to alleged improper questions, he cannot first raise the objection on appeal.

2. RAPE (§ 59) — PROSECUTION — JURY QUESTIONS.

Evidence held to raise the issue of assault with intent to rape, so as to authorize an instruction submitting such issue.

3. RAPE (§ 59) — INSTRUCTIONS — LESSER OFFENSES — ASSAULT.

In a prosecution for assault with intent to rape, in which there was evidence that accused ran his hand under prosecutrix's dress and placed it on her sexual organ, it was error not to instruct on the law of common assault; that offense being necessarily included in the charge of felonious assault in view of Rev. St. 1909, § 4904, providing that upon indictment for a felonious assault accused may be convicted of a lesser offense.

4. CRIMINAL LAW (§ 824) — INSTRUCTIONS — LESSER OFFENSE — NECESSITY OF REQUEST.

In view of Rev. St. 1909, § 5231, requiring the court to instruct upon all questions of law necessary for the information of the jury, where the evidence shows that accused may be guilty of an offense included within that charged in the indictment, the court should instruct upon such minor offense, whether requested or not.

Appeal from Circuit Court, Cass County; Nick M. Bradley, Judge.

Arthur Hoag was convicted of feloniously attempting to rape a 13 year old child, and he appeals. Reversed and remanded for a new trial.

Jas. T. Burney and A. A. Whitsitt, for appellant. E. W. Major, Atty. Gen., and John M. Dawson, Asst. Atty. Gen., for the State.

BROWN, J.

Defendant is charged by indictment with violating section 4482, Rev. St. 1909, by feloniously attempting to rape and carnally know one Jessie Pearl Sears, a female child of the age of 13 years.

The defendant and prosecutrix reside in Union township in Cass county, Mo. The defendant is a married man, a photographer by occupation, and resides with his father on a farm in a house located only a few hundred feet from a church. At the time of the alleged crime, he was employed to or had voluntarily assumed the duty of building fires in this church for the accommodation of patrons of a Sunday school taught therein. The evidence of the prosecutrix recites that she was 13 years old in September, 1909, and resides with her father and mother on a farm about one mile south of the church above mentioned; that 20 minutes before the hour of 10 o'clock in the forenoon of February 27, 1910, she left her home and walked to the church to attend Sunday school. On entering the church she found the defendant there alone, and asked him if he had completed some pictures which he had taken of her a few days before. He replied that he had not, but handed her some other pictures to examine; and, while she was sitting on a bench in front of the stove looking at these pictures, he sat down by her, and, putting one of his hands up under her dress, placed it on her sexual organ, and with the other hand tapped her under the chin. She tried to push his hand out from under her dress; but he refused to remove it until he looked out of the window of the church and saw, only a few yards distant, one John Dempsey, a small boy, approaching. Then he went away and left her alone, informing her that he would not tell anybody, and that he would make her a postal card, and it would be all right. Within a few minutes after this occurrence, the pupils and teachers of the Sunday school assembled at the church. Mrs. Addie Laughlin, who taught the prosecutrix her Sunday school lesson, testified that the usual disposition of prosecutrix was to be cheerful and pleasant, but on that day she seemed to be restless, worried, and mad. After the Sunday school was dismissed, the prosecutrix went home, and about 4 o'clock in the afternoon of that day informed her mother of the defendant's conduct, and, when her father learned it, he caused the defendant's arrest.

Sheriff Sid J. Hamilton took with him one Walter Welborn and arrested the defendant on the 1st day of March, 1910. While they were taking defendant to his home preparatory to removing him to the county seat, one of them told him that he regretted the affair on account of defendant's wife, whereupon the defendant replied that he hated it too, "but that sometimes a man's passion would get the best of him." After giving bond and returning home, one Frank Roblett asked the defendant what he had been arrested for, and he replied, "I am charged with assault with intent to rape, but I haven't killed anybody, and they can't put a man in the penitentiary for feeling of a girl's ____." Roblett seemed to have a very unfriendly feeling toward defendant.

The testimony of defendant was that, when the prosecutrix...