State v. Smith

• Citation: 38 S.W. 717,137 Mo. 25
• Parties: The State v. Smith, Appellant
• Decision Date: 19 January 1897
• Court: United States State Supreme Court of Missouri

38 S.W. 717

137 Mo. 25

The State v. Smith, Appellant

Supreme Court of Missouri, Second Division

January 19, 1897

Appeal from St. Louis Criminal Court. -- Hon. Thomas B. Harvey Judge.

Affirmed.

Claiborne & Anderson for appellant.

(1) The crime of sodomy can only be perpetrated upon one particular part of the body, to wit, the anus, and it must be charged that the attempt was made upon that part of the body. To unbutton the trousers and expose the bare body and lie upon the bare body, does not constitute the offense of attempt at sodomy. Criminal Defenses, p. 103; R. v. Jacobs, R. & R. 331. (2) The evidence is insufficient to sustain the conviction.

R. F Walker, attorney-general, and C. O. Bishop for the state.

(1) The name of the witness Gilmore did not appear on the back of the indictment, still this did not preclude the state from calling him. R. S. 1889, sec. 4097; State v. Pagels, 92 Mo. 300. (2) The instructions were correct and fully covered the case. (3) The indictment is sufficient. (4) The verdict is supported by the evidence.

Gantt P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

The appellant was indicted at the July term, 1895, of the St. Louis criminal court for an attempt to commit and perpetrate the crime of sodomy or buggery. He moved to quash the indictment as insufficient, but his motion was overruled. At the October term, 1895, he was put upon his trial and convicted. His motions in arrest and for new trial were overruled, and in accordance with the verdict he was sentenced to the penitentiary.

I. The indictment is entirely sufficient. It follows the long approved precedents of the common law. Archbold's Crim. Prac. & Plead., Pomeroy's Notes [8 Ed.], p. 1017. It is sufficient in charging an attempt to commit an offense under the statute to state clearly what offense prohibited by law the accused attempted to commit, and state some act committed toward the perpetration of such offense.

At the common law it was only necessary to aver that the defendant "unlawfully did make an assault upon C. D., and him, the said C. D., did then beat and ill treat with intent then feloniously, etc., against the order of nature to have a venereal affair * * * and then feloniously, wickedly, and against the order of nature with the said C. D. to commit and perpetrate the abominable crime of buggery against the form," etc. See citation from Archbold, supra.

This indictment alleges that "in said attempt and toward the commission of said offense, etc., he then and there feloniously did forcibly compel the said Henry Spreen to unbutton the trousers and expose the bare body of him, the said Henry Spreen, and then and there feloniously did lie upon the body of him, the said Henry Spreen," and "then and there did fail in the perpetration of said offense," etc. The acts here charged, in connection with what precedes, are enough to show something done by the accused toward the perpetration of the crime of sodomy.

II. The testimony on behalf of the state tended to show that the appellant was a police officer of the city of St. Louis at the date alleged in the indictment, being at the time on duty from 11 o'clock A. M. to 11 o'clock P. M.; during the preceding four months he had patrolled the beat where the complainant lived and they had become acquainted;...