State v. Houx

• Citation: 19 S.W. 35,109 Mo. 654
• Parties: STATE v. HOUX.
• Decision Date: 02 February 1892
• Court: United States State Supreme Court of Missouri

19 S.W. 35

109 Mo. 654

STATE v. HOUX.

Supreme Court of Missouri, Division No. 2.

February 2, 1892.

RAPE — INDICTMENT — SEVERAL COUNTS — ELECTION — EVIDENCE.

1. An indictment for rape alleged that defendant, "in and upon one M., a female child under the age of 12 years, to-wit, of the age of 10 years, unlawfully and feloniously did make an assault, and her, the said M., then and there unlawfully and feloniously did carnally know and abuse." Held, that the indictment sufficiently alleged that, at the time of the outrage, the said M. was under 12 years of age.

2. An indictment for rape, charging force and want of consent, need not allege the age of the female, or state that she is over 12 years of age.

3. Rev. St. 1879, § 1253, defines rape to be either carnal knowledge of a female child under 12 years of age, or forcibly ravishing a woman of the age of 12 years or upwards. Held, that two counts were properly joined in the same indictment for rape, where one count charged defendant with carnal knowledge, on a certain day, of one M., a female child under 12 years of age and the other count charged defendant with a rape on said M., on the same day, forcibly and against her will. State v. Porter, 26 Mo. 206; State v. Green, 66 Mo. 331; and State v. Mallon, 75 Mo. 365, — followed.

4. The state need not elect on which count of an indictment it will proceed to trial where the several counts relate to the same transaction.

5. On a trial for rape testimony of defendant, that he had reason to believe that the prosecutrix was, at the time of the carnal knowledge, over 12 years of age, was inadmissible.

6. Rev. St. 1879, § 1253, defining rape as carnal knowledge of a female child under 12 years of age, fixed an age in the life of females when they should be deemed incapable of consent to sexual intercourse; and the words "female" and "child" do not limit the application of the statute to a female who has not arrived at the age of puberty.

7. On a trial for rape the court permitted witnesses to state the physical condition and suffering of the prosecutrix some months after the act was committed. Held, that it was harmless error, where, from other evidence, the jury necessarily found defendant guilty, and their verdict fixed the lowest punishment prescribed by the statute.

8. A witness cannot be required to testify concerning the immorality of his previous life, where such testimony does not tend directly to prove some issue.

9. It was harmless to permit defendant to be questioned, on his cross-examination, as to certain testimony which he had given on a previous occasion in a habeas corpus proceeding, but concerning which he was not examined in chief, where a comparison of the testimony given on the trial with that about which he was examined showed that they were substantially similar.

10. On an indictment for rape on a girl under 12 years of age, it cannot be said that the law presumes that she was over that age when the act was committed, though the burden is on the state to prove beyond a reasonable doubt that she was under that age.

Appeal from Saline criminal court; JOHN S. RYLAND, Judge.

Robert Houx appeals from a conviction of rape. Affirmed.

Saml. P. Sparks and Saml. Boyd, for appellant. John M. Wood, Atty. Gen., for the State.

MACFARLANE, J.

Defendant was indicted by the grand jury of Johnson county for an alleged rape upon Mattie Sidenstricker. A change of venue was taken to Saline county, where the case was tried, and defendant convicted and sentenced to five years' imprisonment in the penitentiary. From this sentence defendant appeals.

The indictment contains two counts, the first charging — "That Robert Houx, late of the county of Johnson and state of Missouri, on the 8th day of July, A. D. 1889, at the county of Johnson and state of Missouri, in and upon one Mattie Sidenstricker, a female child under the age of 12 years, to-wit, of the age of 10 years, unlawfully and feloniously did make an assault, and her, the said Mattie Sidenstricker, then and there unlawfully and feloniously did carnally know and abuse." The second count charged a rape on the said Mattie, on the same day, forcibly and against her will. The verdict of guilty was on the first count, and of not guilty on the second. Defendant unsuccessfully demurred to each count of this indictment. The ground of demurrer to the first count was that it failed to affirmatively allege that the complaining witness was, "then and there being," a female child under 12 years of age. In other words, it was not sufficiently averred that, at the time of the alleged outrage, the said Mattie was under 12 years of age.

1. The liberality allowed in criminal pleadings under our practice act has never been so extended as to permit the omission from the indictment of a sufficiently distinct charge of every substantive act necessary to constitute the offense. State v. Reaky, 62 Mo. 42; State v. Sides, 64 Mo. 383. The first count in the indictment is drawn under that part of section 1253, Rev. St. 1879, which makes it a capital offense to have carnal knowledge of a female child under 12 years of age, though accomplished without force, and with the consent of the victim. It is very clear that the age of the child, at the time of the act, is a fact upon which the criminality of the act absolutely depends, and it should therefore be clearly and definitely charged. Approved forms and precedents for indictments for felonies, which it is always safer for the pleader to follow, after once averring the time and place of the offense, thereafter designates them by the terms "then and there." The use of this formula was not necessary, but was adopted for convenience. All that is required is a clear statement of the fact. State v. Luke, 104 Mo. 569, 16 S. W. Rep. 242; State v. Seeley, 65 Mo. 221; State v. Sundheimer, 93 Mo. 313, 6 S. W. Rep. 52. This count in the indictment charges the act of carnal knowledge to have been committed on a certain day, and with a female child under 12 years of age. There was no occasion for any purpose to repeat this allegation.

2. The verdict being for the defendant on the second count, it is unnecessary to consider its sufficiency. The rule is, however, that the indictment for rape, charging force and want of consent, need not allege the age of the female, or state that it was over 12 years. 2 Bish. Crim. Proc. § 954; Bish. St. Crimes, § 846. The charge in the second count was sufficient.

3. Before the trial commenced, and again at the close of the evidence in chief by the state, defendant, by motion, requested that the prosecuting attorney be required to elect upon which count of the indictment he would proceed. These requests were denied, and defendant assigns as error the ruling of the court in doing so. It is insisted, in the first place, that the offenses charged in the two counts are distinct and independent crimes, and repugnant to each other, and a joinder of them, though in separate counts, was improper, and, for that reason, an election should have been required. It is the common and approved practice in this state to charge in the same indictment several distinct felonies, when all relate to the same transaction, and admit of the same legal judgment. State v. Porter, 26 Mo. 206; State v. Mallon, 75 Mo. 365; State v. Miller, 67 Mo. 604; State v. Green, 66 Mo. 331. By section 1253 rape is defined to be either carnal knowledge of a female child under the age of 12 years, or forcibly ravishing a woman of the age of 12 years or upwards. The two counts in this indictment relate to the same transaction, that of unlawfully and feloniously having carnal knowledge of the complaining witness. The punishment for each is the same. The crimes charged are the same. The proof necessary to establish them alone differs. In such case it is "usual to form several counts, for the purpose of meeting the evidence as it may transpire at the trial." 1 Bish. Crim. Proc. § 446; State v. Porter, supra; State v. Sutton, 4 Gill. 494; Bonner v. State, 65 Miss. 294, 3 South. Rep. 663.

4. Whether the state should be required to elect upon which count in an indictment it will proceed to trial is regulated in all cases by sound judicial discretion; but, as a rule, no election will be required when the different counts relate to but one transaction, as in this case. State v. Porter, supra; State v. Green, supra; State v....