State v. Shroyer

• Decision Date: 19 May 1891
• Parties: STATE v. SHROYER.
• Court: Missouri Supreme Court

16 S.W. 286

104 Mo. 441

STATE v. SHROYER.

Supreme Court of Missouri, Division No. 2.

May 19, 1891.

ASSAULT WITH INTENT TO RAPE — EVIDENCE — INSTRUCTIONS.

1. The accused entered a room in which a 14 year old girl was sleeping. He touched her arm, and laid down close to her. He then commenced to unbutton his pants, when an alarm was raised by an older sister, who was sleeping in the same room, and the accused ran off. Held, that there was evidence to sustain a conviction for an assault with intent to rape.

2. The accused having testified on his own behalf, he may be impeached by proof that his general reputation for virtue and chastity is bad.

3. Unless an abuse of discretion is shown, it is not error to refuse to open the case to allow the accused to offer additional testimony in support of his reputation for truth and morality.

4. Under a statutory provision that the court shall charge the jury on all questions of law "which are necessary for their information in giving their verdict," the general instruction that the jury should acquit, if they have a reasonable doubt, sufficiently covers the law bearing on evidence tending to prove an alibi.

Appeal from circuit court, Holt county; C. A. ANTHONY, Judge.

T. C. Dungan, for appellant. The Attorney General, for the State.

MACFARLANE, J.

Defendant was indicted, tried, and convicted of an assault with intent to commit a rape upon Arminta Murphy. The circumstances of the assault, as gathered from the evidence, was, in substance, as follows: The house of Patrick Murphy consisted of two rooms, the one on the south fronting the road, and the other north of it. At the time of the assault Patrick Murphy was absent from home. His children, Catherine, the eldest, Arminta, about 14 years of age, and two sisters and a brother, all younger than Arminta, were at home. On the night of August 23, 1876, these children all slept in the south room of the house. This room had a door in the south, and a window on each side of the door. The night being very warm, all the children, except Catherine, slept on the floor. Catherine was upon the bed. The door was left open. Catherine, the only witness who saw the alleged assault, testified: "I first heard a noise; heard the door-sill creak, but thought it was the dog. I looked round, and saw the defendant — saw Shroyer — on his hands and knees in the door. He crawled to brother. Laid his hand on him, and then crawled round about their feet, to Alice, who was lying in the middle, and touched her. Then crawled over to Arminta. Crawled up by the side of her, and put his hand on her arm. None of them moved. Arminta was lying on her left side, with her face towards the east. He was lying close to her on the east side, with his face towards her face when he was lying down, — lying just up against her. He lay that way for a minute. Then he kind of raised partly up, and looked round the room. Then he took his left hand, and began to unfasten his pants. The moon was shining out doors, and he was almost between me and the door. I could see that he was unbuttoning his pants. I hollered, and he lay down again, as if to hide, and was still a moment. I hollered again. He then partly rose. Crawled towards the door quickly on his hands and knees. As he got about the door, he rose up on his feet," and went out.

1. Defendant insists that the evidence did not sustain the charge of the indictment, and does not justify the verdict. It was not necessary, in order to constitute an assault, that actual violence should have been used. To sustain such an indictment, it is not even necessary that the person of the one upon whom the attempt is intended should be touched. If the intent, with the present means of carrying it into effect, exists, and preparations therefor have been made, the assault is complete. State v. Smith, 80 Mo. 518; State v. Montgomery, 63 Mo. 296; State v. Eddings, 71 Mo. 545; 1 Whart. Crim. Law, § 576. It was the evident intention of defendant to have connection with the girl without her consent, and whether it was to be by actual physical force or during the unconsciousness of sleep is wholly immaterial. There could have been no consent while the intended victim slept. State v. Eddings, 71 Mo. 545; Reg. v. Dee, 31 Alb. Law J. 43; Reg. v. Mayers, 12 Cox, Crim. Cas. 311; Harvey v. State, (Ark.) 14 S. W. Rep. 645; State v. Smith, 80 Mo. 518, and authorities cited. The acts and conduct of defendant left no doubt of his criminal intent.

2. Defendant testified as a witness upon the trial in his own behalf, and in rebuttal the state introduced evidence to...