State v. Meinhart

• Decision Date: 30 April 1881
• Citation: 73 Mo. 562
• Parties: THE STATE, Plaintiff in Error, v. MEINHART
• Court: Missouri Supreme Court

73 Mo. 562

THE STATE, Plaintiff in Error,

v.MEINHART

Supreme Court of Missouri.

April Term, 1881.

Error to Morgan Circuit Court.--HON. E. L. EDWARDS, Judge.

REVERSED.

D. H. McIntyre, Attorney General, and Mack J. Leaming, for the State, as to the sufficiency of the indictment, cited 1 Whart. Prec. of Indict., forms 187, 190; 1 Whart. Crim. Law, § 577 (b. and c.) 8 Ed.; State v. Johnston, 76 N. C. 209; 1 Whart. Prec., form 262; State v. Pickett, 11 Nev. 255; s. c., 21 Am. Rep. 754; People v. Girr, 53 Cal. 629; State v. Fancher, 71 Mo. 461; State v. Erickson, 45 Wis. 86; State v. Little, 67 Mo. 624; State v. Worden, 46 Conn. 349; s. c., 33 Am. Rep. 27; People v. McDonald, 9 Mich. 150.

Edwards & Davison for defendant in error, upon the same point, cited 1 Russ. on Crimes, (2 Ed.) p. 693; Humphries v. State, 5 Mo. 203; 1 Archb. Crim. Prac. and Pl., (8 Ed.) 999; 1 Whart. Prac., (3 Ed.) 255; Whart. Am. Crim. Law, (6 Ed.) § 1153; Archb. Crim. Law, (5 Ed.) 374; State v. Ross, 25 Mo. 426; State v. Montgomery, 63 Mo. 296; State v. Little, 67 Mo. 624.

RAY, J.

At the December, 1880, term of the Cole circuit court, the defendant was indicted for an assault with the intent feloniously to unlawfully and carnally know and abuse one Amelia Thomas, a female child, under the age of twelve years. The indictment is as follows:

In the Cole Circuit Court, at the December term, 1880.

STATE OF MISSOURI,

)

)

SS.

County of Cole,

)

The grand jurors of the State of Missouri, summoned from the body of inhabitants of Cole county, now here in court, duly empaneled, sworn and charged, on their oaths, present that Theodore H. Meinhart, late of said Cole county, on the 20th day of October, in the year of our Lord one thousand eight hundred and eighty, at the said county of Cole, in the State of Missouri, in and upon one Amelia Thomas, a female child under the age of twelve years, towit: Of the age of nine years, unlawfully and feloniously did make an assault, with intent, her, the said Amelia Thomas, then and there feloniously to unlawfully and carnally know and abuse, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Missouri.

MACK J. LEAMING,

Prosecuting Attorney for Cole county, Missouri.

A change of venue was applied for by the defendant, and the cause was sent to Morgan county, where, at the March, 1881, term, of the circuit court of that county, the defendant filed a demurrer to the indictment, as follows:

Now, at this day, comes the defendant, and by his attorneys, and demurs to the indictment herein against him, and says that the same does not charge the defendant with any offense under the statute law of this State. (1) Because it does not charge that the defendant ever assaulted said child with the intent to commit a rape on her; nor does it use any language of similar import and meaning. (2) Because there is no statute of this State making the assaulting any woman or female child with the intent to unlawfully and carnally know and abuse her, an offense for which this defendant could be indicted and punished. (3) Because the indictment does not pursue the language of the statute. (4) Because there is no statute of this State making the assaulting with intent to unlawfully and carnally know a female child under twelve years of age, an offense. (5) Because, if it is intended to charge the defendant with an assault with intent to commit a rape, then the gist of the offense is the intent to commit a rape, and that word or words of similar import and meaning, are necessary to charge the offense.

This demurrer the circuit court sustained, and the defendant was thereupon discharged. Whereupon the State brings the case here by writ of error. The sufficiency of the indictment is the only question in the case.

1. PRACTICE, CRIMINAL: waiver.

The objection that the record does not show that the indictment was ever presented by the foreman of the grand jury in their presence to the circuit court of Cole county, or that the same was ever filed in court, as required by law, comes too late, we think, for the first time in this court. At least, these objections are not raised by the demurrer to the indictment, the sufficiency alone of which is now before this court. Even if this were otherwise, the objection would not be held good under the ruling of this court in the case of the State v. Wm. Grate, 68 Mo. 25, and cases there cited.

This indictment at its heading has the proper venue of “State of Missouri, county of Cole,” with the caption: “In the Cole circuit court, December, 1880, term,” and is indorsed on the back as follows: “Cole circuit court, December term, 1880.” “State of Missouri v. Theodore H. Meinhart.” Assault with intent to carnally know, etc., “a true bill,” “W. C. Young, foreman of the grand jury,” and “filed December 7th, 1880, W. H. Lusk, clerk.” Taking the whole record together, although not exactly formal in all its entries, we think it sufficiently appears in what court the indictment was found, and that it was duly presented and filed in said court.

2. ______: pleading.

The further objection that “the indictment is not entitled of any court known to the laws of this State,” if we understand it, grows out of the fact that the caption reads: “In the Cole circuit court,” instead of “In the circuit court of Cole county.” This objection, we think, is rather technical than substantial, and not well taken. It is the common practice of the profession, as well as all the courts, thus to entitle papers, entries and records as often as the more formal and correct method insisted on by defendant in error. In the case of Kirk v. State, 6 Mo. 469, at page 471 it was held that the caption of the indictment was no part of the indictment. If that be so, the objection, if valid, must be taken in some other way and is not raised by the demurrer and cannot now be considered. See also the case of the State v. England, 19 Mo. 387, where the caption was similar to that of the case at bar. It reads: “In the Hickory circuit court,” and the indictment was held good.

3. ASSAULTTO RAPE: pleading, criminal.

This brings us to the only real point in the case as presented by the above demurrer, and the brief in support of same. We will consider first the language of the statute itself. Section 1253 of the Revised Statutes of 1879, provides as follows: “Every person who shall be convicted of rape, either by carnally and unlawfully knowing any female child under the age of twelve years, or by forcibly ravishing any woman of the age of twelve years or upwards, shall suffer death or be punished by imprisonment in the penitentiary not less than five years, in the discretion of the jury.” Section 1263 provides as follows: “Every person who shall be convicted of an assault with intent to kill or commit any robbery, rape, burglary, manslaughter or other felony, the punishment for which assault is not hereinbefore prescribed, shall be punished by imprisonment in the penitentiary not exceeding five years, or in the county jail not less than six months, or by both a fine not less than $100 and imprisonment in the county jail not less than three months, or by a fine not less than $100.” The language of section 1253, practically declares that either of two states of facts, therein mentioned, constitutes the crime of rape, in one of which force is a necessary ingredient; in the other force need not be used. A party guilty of perpetrating either state of facts may be convicted of rape. It is the perpetration of the acts therein described, not the term or name which the statute applies to the acts so done, which constitutes the offense. An indictment charging the perpetration of either state of facts, in the language of the statute, we apprehend, would be sufficient, and in neither case would the use of other terms, not necessary, vitiate the indictment. Such unnecessary words may be rejected as surplusage. When section 1263, in declaring the punishment which shall be inflicted upon every person convicted of an assault to commit any of the various offenses therein specified, uses the word “rape,” it means and imputes an assault to perpetrate...