State v. Little
| Decision Date | 30 April 1878 |
| Citation | 67 Mo. 624 |
| Parties | THE STATE v. LITTLE, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Webster Circuit Court.--HON. R. W. FYAN, Judge.
John O'Day for appellant, cited, as to the sufficiency of the indictment, Gouglemann v. The People, 3 Park. Cr. 15; State v. Scott, 72 N. C. 461; Sullivan v. State, 3 Eng. Rep. 400; Com. v. Bennet, 2 Va. Cas. 235; 1 Russell on Crimes, (2 Ed.) 686; Bishop on Stat. Crimes, § 484.
J. L. Smith, Attorney-General, for the State, cited State v. Montgomery, 63 Mo. 296; State v. Weber, 22 Mo. 321; State v. Braunschweig, 36 Mo. 397; State v. Connell, 49 Mo. 282.
The defendant was indicted in the circuit court of Webster county, at its March term, 1874, for assault with intent to commit a rape. He was tried, convicted and his punishment assessed at a fine of $100. A reversal of the judgment is sought on the ground that the indictment does not sufficiently charge the offense; that the record does not show an arraignment of the defendant and an entry of his plea “not guilty” before the jury were sworn; that the court erred in refusing and giving instructions; that the verdict is against the evidence. The second count of the indictment, on which the defendant was convicted, is as follows: “And the grand jurors aforesaid, upon their oath aforesaid, do further find, say and present that said James Little, on or about the said 26th day of January, A. D. 1874, at the county of Webster aforesaid, did unlawfully, willfully and feloniously assault Effie J. Evans, a female of the age of eighteen years, with the unlawful, willful and felonious intent to commit a rape in and upon her, the said Effie J. Evans,and to carnally know her by force and against her will, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State.” Wag. Stat., § 23, p. 448, makes “the forcibly ravishing any woman, of the age of twelve years or upwards, a rape,” and section 32, page 449, declares it to be an offense for any person to make an assault with intent to commit a rape, and on this latter section the indictment is founded.
It is argued that the second count is defective in not using the precise words of the statute, “forcibly ravish.” If the pleader had used the exact language of the statute, the indictment would have been good, but it does not follow that it is bad because the identical words were not used, provided words of a like import were employed. When, therefore, the draftsman charged the felonious assault to have been made with the intent to “commit a rape in and upon the person of Effie J. Evans, and to carnally know her by force and against her will,” we think the statutory offense was fully embraced.
The only witness on the part of the State was Effie J. Evans, the prosecutrix, who was twenty-four years of age, and she testified that defendant met her on the road about half a mile from her home and solicited sexual intercourse with her, which she refused; that they walked along the road together some distance,...
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