State v. Miller
| Decision Date | 04 October 1892 |
| Citation | 20 S.W. 243,111 Mo. 542 |
| Parties | The State v. Miller, Appellant |
| Court | Missouri Supreme Court |
Appeal from Phelps Circuit Court. -- Hon. C. C. Bland, Judge.
Affirmed.
L. B Woodside with L. Judson for appellant.
(1) Instruction, numbered 5, asked by the defendant should have been given, and the principle therein set forth is the proper one in such cases. Reg. v. Oxford, 9 C. & P. 525; Parton v. People, 114 Ill. 505. The doctrine of uncontrollable impulse is recognized by all late writers on insanity, and the asylums furnish many instances of patients begging to be restrained to prevent their doing injury to themselves and others. If this be true, can we hold a person accountable for that which he has not the power to avoid. (2) Instructions, numbered 4 and 6, should also have been given. There is a broad distinction between knowing a thing is wrong and knowing it is a crime, and, if on account of a diseased mind he had not mental capacity to know it was a crime, he is not legally responsible. We did not base the proposition on ignorance of the law, but upon a weakened and impaired mind. Reg. v. Oxford, 9 C. & P. 525; Wharton on Criminal Law, title, Non Comp. Men.; Com. v. Rogers, 7 Met 500. (3) The court erred in giving instructions 1, 3 and 7 for the state, in each of which instructions the court assumes the facts charged to have been proven, and that the defendant is guilty if he was not insane at the time. State v. Wheeler, 79 Mo. 366; Comer v Taylor, 82 Mo. 346. (4) The indictment does not allege that the offense was committed on any certain day. First. At common law this was necessary. Wharton on Criminal Law [2 Ed.] p. 111. Second. And the following cases hold that the statute of jeofails only cures this defect when no objection is made before trial. State v. West, 21 Mo.App. 309; State v. Hughes, 82 Mo. 86. Other cases however to the contrary. (5) The indictment should have charged the act to have been forcibly done. First. Our statute makes this offense rape by its terms. Second. Rape is the carnal knowledge of a woman against her will and with force. Bouvier's Dictionary, rape. Third. For the reason that a child is incapable of giving consent, carnal knowledge of her is made rape; in other words, our legislature has declared as matter of law that such carnal knowledge is had only by force. Fourth. The legislature could just as well have made it a separate offense, but it is declared to be rape with full knowledge of the meaning of the word. (6) The record did not show that the oath of E. T. Wingo, special judge, was taken and filed as required by General Statutes, 1889, sections 3328 and 3329. (7) The defendant was entitled to a complete list of the jurors from which to make his challenges. General Statutes, 1889, sec. 4204.
John M. Wood, Attorney General, for the State.
(1) The record shows that the election was regular, and that the required oath was taken; and, when this clearly appears, the provision in regard to the filing of the oath in said sections must be held to be directory. Cape Girardeau v. Riley, 52 Mo. 424; State v. Pitts, 58 Mo. 556; County Court v. Sparks, 10 Mo. 117; State v. Muir, 20 Mo. 303; State v. County Court, 41 Mo. 247; Young v. Camden Co., 19 Mo. 309; Hicks v. Chouteau, 12 Mo. 341. This is not a criminal law, and is not to be construed strictly. State v. Ross, 34 Mo. 336. (2) The indictment charges the offense in the language of the statute, and is sufficient. Revised Statutes, 1879, sec. 1253; State v. Meinhart, 73 Mo. 562. (3) No exceptions were saved to the admission of any testimony on the part of the state. (4) The instructions given by the court relative to insanity followed approved precedents. State v. Bryant, 93 Mo. 273; State v. Pagels, 92 Mo. 314. And no error was committed in refusing those asked by the defendant. Taken as a whole, the instructions are such as have frequently been approved by this court, and were most favorable to the defendant. (5) No assignment was made in the motion for a new trial relative to the conduct of the prosecuting attorney in reading the section of the statute on which the prosecution was based, whilst making his opening statement to the jury, and the matter is not a subject of review. (6) No error was committed in receiving the verdict over defendant's objection that the list of jurors furnished him, and of the panel selected to try the case, contained by error of the clerk the name of H. E. Gideon, instead of James T. Gideon. State v. Orrick, 106 Mo. 111; State v. Hultz, 106 Mo. 41. The evidence warranted the verdict, and the judgment should be affirmed.
An indictment was returned by the circuit court of Dent county at the April term, 1888, E. T. Wingo presiding as special judge, in which it was charged that defendant on or about the twenty-fourth day of February, A. D. 1888, at and in the county of Dent, in the state of Missouri, in and upon Effie McGuire, a female child under the age of twelve years, to-wit, of the age of nine years, unlawfully and feloniously did make an assault, and her (the said Effie McGuire) then and there unlawfully and feloniously did carnally know and abuse, etc.
On the application of defendant, a change of venue was taken to Phelps county, in which he was tried, convicted and sentenced to imprisonment for five years. From this sentence he appealed to this court.
The record shows that at the regular time and place of holding the April term, 1888, of the circuit court of Dent county, C. C. Bland, the judge thereof "being absent, an election was held by the clerk of said court to elect a special judge of said court, which resulted in the election of E. T. Wingo as such special judge, there being more than five practicing attorneys voting at said election, the said E. T. Wingo was declared elected, who took and subscribed the usual oath in such cases prescribed by law."
Objection was made to the sufficiency of the indictment and its validity by proper motions. These were overruled and exceptions saved.
At the August term, 1891, defendant made an application for a continuance of his case, on the ground of physical inability to go to trial on account of sickness. He supported his application by the affidavit of a physician. In opposition to the application, the state filed affidavits contradicting defendant's claim of physical disability. After a hearing by the court, a continuance was denied.
Of the panel of forty jurors, one was named James T. Gideon. He was summoned, examined as to his qualifications, and accepted as one of the forty under his proper name. In the list furnished defendant, his name was given as H. E. Gideon, through mistake of the clerk in copying the names. This person was accepted as one of the twelve, and was named upon the record as H. E. Gideon. Upon returning the verdict, the jury was polled, and it was then discovered that the juror's name was James T. instead of H. E. Gideon. Objection was then and there made by defendant to receiving the verdict upon the ground that he had not received a true list of the jurors from which to make his challenges, and that James T. Gideon was not the man selected by defendant as one of the jurors. The objection was overruled, and the clerk was ordered to correct the name of the juror upon the record, and the verdict was received and defendant excepted.
The evidence, on the part of the state, tended to prove that Effie McGuire was born August 1, 1877; that defendant was a shoemaker, and worked in a shop in Salem; that at his request the girl went to his shop on several occasions in February, 1888, and he had intercourse with her. Two or three witnesses saw through holes in the ceiling defendant go through the form of sexual intercourse with the girl on several occasions in the daytime. The girl made no outcry or noise of any kind. She testified that he had intercourse with her.
The evidence on the part of defendant tended to prove that the girl was born in 1876, and was over twelve years of age when the criminal act was charged to have been committed; that the girl said she never had intercourse with anyone before. There was no evidence of any bruises or laceration. Defendant was about seventy years old and was married.
Defendant's wife testified that he was, and for five years before the criminal act had been, insane. Two physicians testified that, from the facts given in evidence, it was their opinion that Miller was insane, and the very acts testified to by the state's witnesses were the acts of an insane man, and their judgment was upon hearing the whole of the evidence that he was insane at the time, and further that they had heard all of the evidence, and that it was practically impossible to have been any penetration by Miller, and if there had been the girl's parts would have been lacerated and swollen, and she could not have submitted to a second act without outcry, and would not likely have done so.
Defendant asked, and the court refused to give, three instruction on the law of insanity as applied to the facts in the case. Two of them told the jury in substance, that if defendant's mind was so diseased that he could not and did not realize and understand that he was committing the crime charged, or that the same was a crime, or that he was legally responsible for the act, then they should acquit him. The third told them that if his mind was so impaired that he did not realize the enormity of the crime, or had not power of will sufficient to control his conduct, he was not responsible for his act.
The court on its own motion gave two instructions on insanity one told the jury that if defendant's mind was so diseased that he could not and did not realize and comprehend the nature of the act...
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