State v. Montgomery
| Decision Date | 31 October 1876 |
| Citation | 63 Mo. 296 |
| Parties | STATE OF MISSOURI, Respondent, v. WILLIAM MONTGOMERY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Laclede Circuit Court.
Ewing, Smith & Pope, with H. B. Johnson, for Appellant, cited: State vs. Burgdorf, 53 Mo. 65; Bish. Crim. Law, § 939, p. 665, and authorities cited in note 7, at foot of page; State vs. Mathews, 20 Mo. 55; State vs. Weber, 22 Mo. 321; State vs. Koerner, 51 Mo. 174; Meader vs. State, 11 Mo. 363; The State vs. Anderson, 27 Mo. 267; State vs. Barnes, 59 Mo. 154; Hyde vs. Curling, 10 Mo. 359; State vs. Saunders, 53 Mo. 234.
Hockaday, Att'y Gen'l, for Respondent, cited: 3 Greenl. Ev. § 209; 4 Black. Com. 210; 1 Russ. Crimes, 675; 49 Mo. 396; 10 Mo. 676; 6 Mo. 211; State vs. Weber, 22 Mo. 325; State vs. Braunschweig, 36 Mo. 397; State vs. Saunders, 53 Mo. 236; Wagn. Stat. 1095, § 5; Beman vs. State, 2 Zab. 9; Hannon vs. State, 11 Ind. 311; 1 Ch. Crim. Law, 720.
The defendant was indicted for attempting to commit a rape, and was convicted of that offense. The evidence of the prosecutrix showed that defendant met the woman in a public road and made improper proposals to her which she rejected, and that he then caught her by the arm, and tried to pull her into the woods. There was other corroborative evidence, and there were also admissions made by the defendant that, if another woman had not come in sight, he would have accomplished his purpose.
A reversal is asked for because the court improperly refused to grant the defendant a continuance, because there was error in giving and refusing instructions, and because defendant was not arraigned upon the trial and a plea of not guilty entered in his behalf. As the judgment will have to be reversed for the latter ground, it will be unnecessary to notice the action of the court in refusing the continuance. But, as the case must be re-tried, it will be as well to notice the instructions.
The first instruction, given for the State, merely told the jury that they were the judges of the evidence, the credibility of the witnesses, of the act committed by the defendant, and of the intent of the act.
The second instruction was to the effect that the jury were to judge of defendant's intent by the words used by him, the acts he performed, and all the facts and circumstances shown by the evidence; and the substance of the third instruction was, that if the defendant put his hands on the person of the prosecutrix against her will, with the intent to commit a rape upon her against her will, then the jury should find him guilty.
The defendant asked the court to instruct the jury that the word rape as used in the indictment, and as known in law, was the carnal knowledge of a woman by a man by force and agains her will, and the crime of rape could only be committed when there was on the part of the woman the utmost resistance, and the man overpowered such resistance; and, unless the jury believe from the evidence, beyond a reasonable doubt, that defendant made an assault with the intent to commit the crime of rape, as above defined, there should be an acquittal.
This instruction the court refused, and in lieu thereof, of its own motion, told the jury that the word rape as used in the indictment, and as known in law, was defined as the carnal knowledge of a woman by a man, by force and against her will, and unless the jury believe from the evidence, beyond a reasonable doubt, that defendant made an assault with intent to commit the crime of rape, they should acquit.
The court gave three instructions at the request of the defendant; the first told the jury that they were the judges of the credibility of witnesses; the second, that the essence of the crime charged consisted in the intent to rape, and that it devolved upon the State to prove such intent affirmatively, and if the jury had a reasonable doubt as to the guilt or innocence of the defendant, they should acquit; third, that the indictment charged, and the defendant was on trial alone for, an assault with an intent to commit the crime of rape, and that the intent to rape must be proved by the State, and unless it was proved that defendant entertained the specific intent to commit a rape, then the jury should acquit.
The instructions are unobjectionable and leave the defendant no ground for complaint. The onus is...
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...and plea was fatal. There was no discussion of authorities. That case was followed and cited without further discussion in State v. Montgomery, 63 Mo. 296. State v. Agee, 68 Mo. 264, merely "As the record shows no arraignment of defendant, this, under repeated adjudications, must accomplish......
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