State v. Houx

Decision Date02 February 1892
Citation19 S.W. 35,109 Mo. 654
PartiesThe State v. Houx, Appellant
CourtMissouri Supreme Court

Appeal from Saline Criminal Court. -- Hon. John E. Ryland, Judge.

Affirmed.

S. P Sparks for appellant.

(1) The counts of the indictment were repugnant; though based on the same transaction, there could be but one conviction, and the court erred in overruling defendant's motion requiring the state to elect, made before the trial was begun. Nicholas v. State, 5 S.W. (Tex.) 239; People v Parke, C. C. 154; Bishop on Statutory Crimes, secs 478-494; 1 Wharton's American Criminal Law [4 Rev. Ed. 1858] secs. 416, 422; State v. Cherry, 1 Swan (Tenn.) 160; Bonner v. State, 3 S. Rep. 663. (2) The defendant's motion, made after all the state's evidence was in, to require the plaintiff to elect upon which of the counts it would submit to the jury, should have been sustained, it conclusively appearing that there was but one transaction. This is the invariable rule of practice both in civil and criminal cases. Erlich v. Ins. Co., 88 Mo. 249; Roberts v. Railroad, 43 Mo.App. 287; State v. Daubert, 42 Mo. 242; State v. Parish, 104 N.C. 679. (3) The demurrer to the first count in the indictment should have been sustained, for the reason that it failed to affirmatively allege that Mattie Sidenstricker was "then and there being" a female child under the age of twelve years. McComas v. State, 11 Mo. 116; State v. Reaky, 1 Mo.App. 3; S. C., 62 Mo. 40. (4) The demurrer to the second count in the indictment should have been sustained; it should have affirmatively alleged that Mattie Sidenstricker was "a woman above the age of twelve years," following the language of the statute. 1 R. S. 1879, sec. 1253; Wharton's American Criminal Law [4 Rev. Ed. 1858] secs. 364-374; State v. Ross, 25 Mo. 426; State v. Howerton, 59 Mo. 91. (5) It was gross and prejudicial error to allow the state to make out her case by acts and conduct of the mother, and the physical condition of Mattie, varying from an hour to three months after the act of sexual intercourse. State v. Jones, 61 Mo. 232; Greenleaf on Evidence, 213; McMerrin v. Rigby, 45 N.W. 877; leading art. by F. B. James, 23 Weekly Law Bulletin, 388. (6) The court erred in permitting the state to cross-examine defendant as to whether he had made certain statements as a witness in the habeas corpus proceedings before Judge Sloan. No such matter had been drawn out in his direct examination, for such an attempt would have been an infraction of a plain rule of evidence on the part of defendant. It was, therefore, a gross violation of the statute for the court to allow him to be examined as to such statements. (7) The court erred in refusing the ninth, tenth, eleventh and twelfth instructions asked by the defendant, based on the theory that this statute by the employment of the words "female" and "child" meant a female child who had not arrived at the age of puberty, or when she could become impregnated. Blackburn v. State, 22 Ohio St. 102.

John M. Wood, Attorney General, for the State.

(1) Only a single offense was charged, both counts relating to the same transaction, and the court did not err in overruling defendant's motion to require the state to elect. State v. Porter, 26 Mo. 201; State v. Davis, 29 Mo. 391; State v. Pitts, 58 Mo. 556; State v. Turner, 63 Mo. 436; State v. Green, 66 Mo. 631; State v. Miller, 67 Mo. 604; State v. Testerman, 68 Mo. 409; State v. Mallon, 75 Mo. 356; State v. Pratt, 98 Mo. 482; State v. Jennings, 98 Mo. 493. (2) The defendant was found not guilty, as charged in the second count of the indictment, and it will not be necessary to review that count of the indictment or the instructions founded on the law peculiar to that count. State v. Davis, 29 Mo. 391. (3) The demurrer to the first count in the indictment was properly overruled. It charges the offense in the language of the statute and is sufficient. R. S., sec. 3480; State v. Meinhart, 73 Mo. 562. (4) The court did not err in refusing the ninth, tenth, eleventh and twelfth instructions asked by defendant. The statute itself fixes the age of consent. 83 N.C. 608; 9 Mich. 150; Bishop on Statutory Crimes, supra; 70 Cal. 468; 100 N.C. 494; 76 N.C. 209; 50 Ark. 330. (5) The law raises no presumption as to the age of the person alleged to have been ravished. It must be alleged and proved like any other fact. Hence no error was committed in refusing instruction, numbered 8, asked by defendant. (6) The instructions asked and given on the part of the state and defense properly declare the law of the case, and the judgment should be affirmed.

OPINION

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 eighth 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 twelve years, to-wit, of the age of ten 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 on the first count was that it failed to affirmatively allege that the complaining witness was "then and there being" a female child under twelve years of age. In other words, it was not sufficiently averred that, at the time of the alleged outrage, the said Mattie was under twelve years of age.

I. 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 fact necessary to constitute the offense. State v. Reakey, 62 Mo. 40; State v. Sides, 64 Mo. 383.

The first count in the indictment is drawn under that part of section 1253, Revised Statutes, 1879, which makes it a capital offense to have carnal knowledge of a female child under twelve 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 designate 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. 563, 16 S.W. 242; State v. Steeley, 65 Mo. 218; State v. Sundheimer, 93 Mo. 311, 6 S.W. 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 twelve years of age. There was no occasion for any purpose to repeat this allegation.

II. The verdict being for 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 twelve years. 2 Bishop on Criminal Procedure, sec. 954; Bishop on Statutory Crimes, sec. 846. The charge in the second count was sufficient.

III. 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. 201; State v. Mallon, 75 Mo. 355; State v. Miller, 67 Mo. 604; State v. Green, 66 Mo. 631. By section 1253 rape is defined to be either carnal knowledge of a female child under the age of twelve years, or forcibly ravishing a woman of the age of twelve 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 Bishop on Criminal Procedure, sec. 446; State v. Porter, supra; State v. Sutton, 4 Gill 494; Bonner v. State, 65 Miss. 293, 3 So. 663.

IV. 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....

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