State v. Scholl
| Decision Date | 19 November 1895 |
| Citation | 130 Mo. 396,32 S.W. 968 |
| Parties | STATE v. SCHOLL. |
| Court | Missouri Supreme Court |
1. Rev. St. 1889, § 3490, fixes the maximum punishment for assault with intent to rape at five years' imprisonment in the penitentiary, but fixes no minimum imprisonment. Section 3955 provides, generally, that no person shall in any case be sentenced to imprisonment in the penitentiary for any term less than two years. Held, that such sections are not conflicting, and that the minimum punishment for assault with intent to rape is imprisonment for two years.
2. Prosecutrix testified that defendant came to her house in the afternoon, where she was alone, and, after a short conversation, he grabbed her, kissed her several times, and pushed her on a bed near her, he falling on her; that she resisted, and struck him in the face, when he released her, and she got up; that he again took hold of her, pushed her against the wall, unbuttoned his pants, and again threw her on the bed, and attempted to raise her clothes, but she successfully resisted him; that he was there about 15 or 20 minutes; and that she knew a man was at work about 50 yards from the house, but did not call him. Defendant, who had worked for her husband, and had stayed at the house over night at her request, in her husband's absence, because she was afraid to stay alone, proved a good character, admitted he took hold of her, scuffled with her, kissed her, and threw her on the bed, but denied any attempt or intention to have connection with her. Held, that there was no evidence to take the case to the jury on the theory of assault with intent to rape.
Appeal from criminal court, Lafayette county; John E. Ryland, Judge.
Frank Scholl was convicted of an assault with intent to commit rape, and appeals. Reversed.
John S. Blackwell and John Welborn, for appellant. R. F. Walker, Atty. Gen., and Morton Jourdan, for the State.
At the October term, 1894, of the Lafayette circuit court, the defendant was indicted for assault upon Mrs. Maggie Hupman, with intent to ravish and carnally know her. At the same term he was tried and convicted, and his punishment fixed at two years' imprisonment in the penitentiary. From that judgment he has prosecuted his appeal.
The testimony of Mrs. Hupman was about as follows: That about 3 o'clock in the afternoon of Monday, October 1, 1894, the defendant came to her house, where she was entirely alone; her children, three in number, being at school, and her husband in the country, threshing grain. She was engaged at the time in cutting out some cloth for the purpose of making a garment for one of her children. That defendant came to one of the doors leading into the house, which was then open, and, being by her asked to come in, he did so, and asked her about some hands to assist in picking tomatoes, and after a short conversation in regard thereto he grabbed her, and pushed her over the bed in close proximity to which she was then standing; he falling upon her. That she resisted him, and struck him on the nose. That he then released her, and she got up from the bed, when he again took hold of her, and pushed her up against the wall, and unbuttoned his pants in front, when he again threw her on the bed, and attempted to raise her clothing, she resisting him all the time. That during the time he had hold of her he kissed her several times. That he was in the house about 15 or 20 minutes. That she knew a man was at work about 50 yards from the house, but did not call him. Defendant admitted that he took hold of her, that he had a scuffle with her, kissed her, and threw her on the bed; but he denied that he attempted to, or that he had any intention of, ravishing her, or having connection with her. He had been frequently about Hupman's house, had worked for him, was well acquainted with the family, and had stayed at the house over night at the request of Mrs. Hupman, in the absence of her husband, when one of her children was ill, because she was afraid to stay alone. He proved a good character.
There are 12 specific grounds urged by counsel for defendant for a reversal of the judgment, but it will...
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