State v. Ross

• Court: Missouri Supreme Court
• Writing for the Court: RYLAND
• Citation: State v. Ross, 25 Mo. 426 (Mo. 1857)
• Decision Date: 31 July 1857
• Parties: THE STATE, Respondent v. ROSS, Appellant.

25 Mo. 426

THE STATE, Respondent

v.ROSS, Appellant.

Supreme Court of Missouri.

July Term, 1857.

1. An indictment charging that the defendant “with force and arms, at, etc., upon the body of one E. J., then and there being, feloniously did make an assault, and then and there feloniously and forcibly did attempt to ravish and unlawfully and carnally know the said E. J., against her will, who was then and there a woman of the age of ten years and upwards, contrary,” etc., is bad under section 37, of article 2, of the act concerning crimes and punishments (R. C. 1845, p. 350), in that it does not charge an assault with intent to ravish; it is also bad under section 1, of article 9, of said act.

Appeal from Andrew Circuit Court.

Loan and Hall, for appellant.

I. The indictment (if framed on any section of the statute at all) was framed on the 38th section, of article 2, of the act concerning crimes and punishments. (R. C. 1855, p. 567.) It is not good under this section, because it does not charge the assault was made “with intent to commit a rape.” This is the essence of the offense, and it was necessary to allege it in the indictment, and prove it on the trial.

II. The indictment does not show such an attempt, which, had it been completed, would have amounted to rape. It charges that “the said Emily Johnson was a woman of the age of ten years and upwards.” It ought to have charged that she was a “female child under the age of twelve years,” or a “woman of the age of twelve years or upwards.” It charges neither. These are the statute definitions of the persons upon whom a rape may be committed, and they cannot be changed by pleading.

Ewing (attorney-general), for the State.

I. The assault is charged, and the design, purpose or intent of the assault is averred as clearly as language could make it, by alleging an attempt to ravish. The averment that defendant did attempt to ravish, etc., shows not only quo animo the assault was made, but also some endeavor or effort towards accomplishing it. These words of the indictment, ex vi termini, import the intent with which the assault was made, namely, to commit the offense charged to have been attempted. There could have been no attempt to ravish without an intention to do it. The manner and means of the assault, or the manner of the attempt to ravish, need not have been averred. If a word used in the indictment is equivalent to the word used in the statute, or is of more extensive signification than it, and includes it, the indictment will be sufficient. (Wharton C. L. 190; State v. Bullock, 13 Ala. 413; United States v. Bachelder, 2 Gall. 15; State v. Hickman, 3 Halst. 299.)

II. The statute definitions of the persons upon whom a rape may be committed are, “any female child under the age of ten years,” or “any woman of the age of ten years or upwards,” and the indictment follows the statute. (R. C. 1845, art. 2, §26, p. 348.)RYLAND, Judge, delivered the opinion of the court.

The defendant, Ross, was indicted at the May term of the Circuit Court of the county of Gentry, in the year 1856, for an assault and attempt to ravish one E. J. The defendant appeared to the indictment, filed his petition for a change of venue, which was allowed, and the venue was changed from Gentry Circuit Court to the Circuit Court of Andrew county. At the April term of the Andrew Circuit Court, 1857, the defendant moved the court to quash the indictment; this motion being overruled, he pleaded not guilty; was tried and convicted; the jury assessed his punishment to a fine of five hundred dollars and three months' imprisonment in the county jail. The defendant filed his motion for a new trial, which was overruled; also filed his motion in arrest of judgment, which, being overruled, he excepted, filed his bill of exceptions, and brings the case here by appeal.

The questions before us involve the sufficiency of the indictment, which, in substance, is as follows:

“In the Circuit Court, May term, 1856--county of Gentry, to wit: The grand jurors of the State of Missouri, etc., upon their oath present, that George Ross, late of said county, on, etc., with force and arms, at, etc., upon the body of one Emily Johnson, then and there being, feloniously did make an assault, and then and there feloniously and forcibly did attempt to ravish and unlawfully and carnally know the said Emily Johnson, against her will, who was then and there a woman of the age of ten years and upwards, contrary,” etc.

The reasons assigned in the motion to arrest are, 1st, because the...