State v. Neal
| Decision Date | 17 November 1903 |
| Citation | 76 S.W. 958,178 Mo. 63 |
| Parties | THE STATE v. NEAL, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. John W. Wofford, Judge.
Affirmed.
Philip D. Clear for appellant.
(1) There is not sufficient evidence to sustain a conviction for assault with intent to ravish. State v. Priestly, 74 Mo. 24; State v. Ousley, 102 Mo. 678; State v Scholl, 130 Mo. 400; State v. Hayden, 141 Mo 311; 1 Archbold's Crim. Prac. and Pl. (8 Ed.), p. 882; Rex v. Stanton, 1 Car. & K. 415; 3 Russell on Crimes (6 Ed.), p. 236, citing Rex v. Lloyd, 7 C. and P. 318. (2) The court erred in overruling defendant's motion to quash the information, for the reasons that it does not comply as to certainty with section 22, article 2, of our Constitution, in that it does not apprise defendant of the nature and cause of the accusation, nor does it comply with the similar guaranty in our Federal Constitution. 3 Chittys' Crim. Law, pp. 171, 173, 228, 828, 829, 816; 2 Hawk. P. C. p. 313, sec. 60, and Hawk. b. 2, c. 25, s. 57; 1 Archbold's Crim. Prac. and Pl. (8 Ed.), p. 1012; 17 Ency Pl. and Pr., p. 662, and 663; 1 Wharton on Crim. Law (6 Ed.), sec. 292; Clark's Crim. Prac., ch. 8, p. 265; Proctor v. Com. (Ky.), 20 S.W. 213; Christian v. Com., 23 Grat. (Va.) 957; 23 Am. and Eng. Ency. of Law (2 Ed.), p. 868; Sullivant v. State, 3 Engl. (Ark.) 400; Johnson v. State, 14 Ga. 55; Com. v. Clark, 6 Grat. (Va.) 675; Com. v. Barrett, 108 Mass. 303; United States v. Cruikshank, 92 U.S. 558; United States v. Britton, 107 U.S. 661; United States v. Hess, 107 U.S. 488; State v. Clay, 100 Mo. 583; State v. Clayton, 100 Mo. 516; State v. Harney, 101 Mo. 472; State v. Terry, 109 Mo. 616; Bishop New Crim. Proc., secs. 81 and 519; State v. Barbee, 136 Mo. 444; State v. Dale, 141 Mo. 289; State v. Burdett, 145 Mo. 679; State v. Fraker, 148 Mo. 156; State v. Furgerson, 152 Mo. 92; State v. Thierauf, 167 Mo. 429. (3) The court erred in refusing to admit on behalf of defendant, competent, material, proper and very important evidence, by refusing defendant the right to ask Mrs. Kerr, "What led you to make the examination for seeing whether or not anything was stolen unless you had reason to believe he was there for that purpose?" after the prosecutor had asked her if she had made such an examination and found nothing missing.
Edward C. Crow, Attorney-General, and C. D. Corum for the State.
(1) It is not necessary, as counsel for appellant contends, that the indictment should set forth the mode or means of the assault. The averment that the assault was made with the intent, etc., is all that the law requires. The circumstances attendant upon the assault and evincive of the design with which it was made are matters of evidence and need not be pleaded. State v. Clayton, 100 Mo. 516; State v. Smith, 80 Mo. 516; Bishop's Crim. Law, sec. 545; State v. Steinmann, 162 Mo. 188; State v. Chandler, 24 Mo. 371. (2) The evidence shows that the defendant violently seized the prosecutrix, that he placed his "jumper" over her mouth to prevent an alarm being given; that after she freed herself from his grasp he started towards her and that he was frightened away by her continued screams. What was the defendant's motive? If to rob, why awaken the prosecutrix? If to murder, what the motive and why the means pursued? He had the physical ability to complete the attempt, and under all the facts the finding of the jury was warranted by the evidence. State v. Montgomery, 63 Mo. 296; State v. Eddings, 71 Mo. 545; State v. Shroyer, 104 Mo. 441; State v. Scholl, 120 Mo. 396; Cunningham v. Commonwealth, 88 Va. 37; State v. Neely, 74 N.C. 425; State v. Mitchell, 89 N.C. 521; State v. Daly, 16 Or. 240; State v. Elick, 7 Jones (N. C.) 68. (3) The contention of defendant that he should have been permitted to prove by the prosecutrix that she knew that the defendant's motive was robbery, can not be sustained. The prosecutrix stated on direct examination that she made a search after the defendant had gone, in order to discover whether any property was missing. On cross-examination she was asked what led her to make an examination as to whether any property had been stolen. The State interposed an objection to this question, which was sustained. It can make no difference what led her to make the examination. It was sufficient that she did make it, and the defendant had a right to show by her that the examination was made and the result thereof; but he did not have a right to interrogate the witness as to what motive led her to make the examination. Had the defendant offered to show by the prosecutrix that property was stolen, this would have been competent; but the question asked was incompetent for any purpose.
At the September term 1902, of the Jackson County Criminal Court an information was filed by the prosecuting attorney charging the defendant with an assault with intent to commit a rape. He was arrested, tried and convicted, and sentenced to the penitentiary for five years. He appeals to this court.
The defendant moved to quash the information and also assailed it by motion in arrest, both of which were overruled.
The evidence makes the following case: On the afternoon of July 15, 1902, Mrs. Josephine Kerr, the wife of Dr. Kerr, of Independence, Missouri, was asleep on a bed in the dining room of her residence in said city. Her baby slept by her side.
While she slept, and about four o'clock in the afternoon, a negro man was observed standing on the back porch of her house, looking into the dining-room where she was sleeping. He was dressed in a blue jumper and blue overalls and wore a black slouch hat.
The adjoining property, some fifty feet distant, was occupied by Mrs. Fletcher. On that afternoon Mrs. Devasher and her son, Roy, and a Mr. Williams, her relative, were visiting Mrs. Fletcher. Her little daughter, Myrtle, about eight years old, and Roy Devasher and another boy were out in the yard playing catch ball. Mrs. Fletcher, Mrs. Devasher and Williams were sitting in the house talking. The negro man was observed to partly remove his jumper and then to replace it as he stood on the porch and then to enter the back door of Mrs. Kerr's house. Very soon after he entered the door the children were startled by the screaming of Mrs. Kerr. Mrs. Fletcher and her visitors heard the screams and remarked on it but thought the children were turning the hose on each other until one of the children ran to the window and said Mrs. Kerr was screaming for help. They then started to her assistance and about that time the negro emerged from the house and ran rapidly away, pursued by Roy Devasher, Howard Hill and Mr. Williams. He first ran into an old outhouse on a neighboring lot and the boys looked through the cracks at him, and seeing his hiding place was discovered, he ran on and escaped for the time being.
Mrs. Kerr details what occurred in her dining-room. She was asleep with her hands clasped over her head. She had drawn the bed down opposite the window and slept with her head to the foot of the bed. When she awoke a negro man, whom she identified as the defendant, had her two hands pinioned in one of his and with the other had placed his "jumper" over her mouth, and was leaning over her person. She immediately struggled up and liberated herself, screaming as she did so. In her encounter with the negro in disengaging herself, her neck and face was scratched and the imprint of his fingers left on her face. One scratch was about six inches long and from this the blood flowed.
In pulling the bed into the floor she had left a narrow passage between the table and the bed, and this passage afforded her only avenue of retreat. Through this she backed off, screaming, and he followed her into this passage until she had escaped to the front porch of the house. Checked and frightened by the cries of Mrs. Kerr, the defendant ran hurriedly about the room and then ran out on the back porch, halted a moment and then ran away, as already stated, pursued by the boys. Mrs. Fletcher and Mrs. Devasher went to Mrs. Kerr's assistance and found her laboring under intense excitement.
She still had in her hands the negro's jumper which in her fright she had pulled from her mouth when she freed herself from his grasp. These ladies noted the finger prints on her face and the scratch which had broken the skin and was still bleeding. Mrs. Kerr's arms were sore for several days from the struggle.
This all occurred on Tuesday, the 15th day of July, 1902. On the following Saturday the defendant was arrested. Different witnesses identified him. When arrested he was asked what he had done with his jumper and he said he had left it in Mrs. Carpenter's pasture, and had left his overalls in another place. Search was made by the officers in both places, but nothing was found. He changed his clothing and put on a brown suit and told a companion at the depot that he was tired of wearing blue.
The defendant did not testify in his own behalf. He offered evidence of a previous good reputation for morality.
I. The first insistence is that the motion to quash the information should have been sustained.
The material averments are as follows: "That Planey Neal whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 15th day of July, 1902, at the county of Jackson, State of Missouri, in and upon one Josephine Kerr, a woman over the age of fourteen years, unlawfully and feloniously did make an assault, with felonious intent upon her, the said Josephine Kerr, then and there unlawfully, feloniously, forcibly and against her will, feloniously to ravish and carnally...
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