State v. Mahood
| Decision Date | 25 May 1915 |
| Docket Number | No. 18707.,18707. |
| Citation | 177 S.W. 371 |
| Parties | STATE v. MAHOOD. |
| Court | Missouri Supreme Court |
Appeal from Criminal Court, Jackson County; Ralph S. Latshaw, Judge.
Allah Mahood was convicted of statutory rape, and he appeals. Reversed and remanded.
O. F. Wimmer, of Kansas City, for appellant. John T. Barker, Atty. Gen., and W. T. Rutherford, Asst. Atty. Gen., for the State.
Charged with statutory rape, the appellant was convicted of an assault with intent to commit a rape, and his punishment assessed at five years' imprisonment in the penitentiary. From this judgment he appeals to this court. Unable to furnish bail, he is now undergoing punishment.
A detailed statement of the facts would serve no good purpose, and it is not essential in determining the points at issue. It will suffice to say that the evidence was conflicting. The only direct proof of the crime was the testimony of the child, five years of age. The other testimony for the state consisted principally of circumstances, which, but for the physical condition of the child, as testified to by doctors who examined her, would have but little weight. The appellant denied the crime. Doctors testifying for the defense, who had examined the child after the examination made by witnesses for the prosecution, stated that her person exhibited no evidence of an assault. Each of these examinations was made two weeks or more after the crime was alleged to have been committed.
What may not inappropriately be termed the atmosphere of the case, created by the character of the witnesses both for the prosecution and the defense, their manner of testifying, and the substance of their testimony, is not impressive of truth. In this conclusion, however, we are confined.to the printed page, while the jury, not so hampered, but aided by the personal presence and the manner and tone of the witnesses, reached the conclusion that the evidence was sufficient to sustain a verdict of guilty and so found. Despite an undefined misgiving as to the probative force of this evidence, which does not appear on the record, we do not feel authorized in disturbing the jury's finding on the ground of insufficiency of the evidence alone.
The only direct evidence showed that the act was consummated, not merely attempted. Error was therefore committed by the trial court in not instructing for rape, instead of an assault with intent to commit a rape. This error was in the teeth of an express statute (section 4895, R. S. 1909). which has been construed and its observance held necessary to proper procedure in the following cases: State v. Bobbitt, 242 Mo. loc. cit. 287, 146 S. W. 799; State v. McCaffery, 225 Mo. loc. cit. 623, 125 S. W. 468; State v. Clark, 221 Mo. loc. cit. 396, 120 S. W. 21; State v. Bell, 194 Mo. loc. cit. 2(37, 91 S. W. 898. Earlier cases cited in the Bell Case announce the same doctrine.
Unfortunately, however, for the appellant, the error...
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