State v. Warner

• Decision Date: 31 October 1881
• Citation: 74 Mo. 83
• Parties: THE STATE v. WARNER, Appellant.
• Court: Missouri Supreme Court

74 Mo. 83

THE STATE

v.WARNER, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Cass Circuit Court.--HON. NOAH M. GIVAN, Judge.

AFFIRMED.

Jas. T. Burney and Boggess & Railey for appellant.

Under the statute, (R. S. 1879, § 1253,) it is necessary to charge that the person upon whom the supposed rape is alleged to have been committed, was a woman; the name, Mary, does not necessarily mean a woman or a female. Names of many things, and especially of persons, are purely arbitrary and meaningless. State v. Ross, 25 Mo. 426. The court erred in allowing the prosecuting witness to be asked what she told her husband. State v. Jones, 61 Mo. 232; Baccio v. People, 41 N. Y. 265; People v. McGee, 1 Denio 19. The evidence adduced did not prove the crime charged. On the evidence adduced, the court ought to have instructed the jury to acquit. State v. Brosius, 39 Mo. 534; State v. Arnold, 55 Mo. 91; State v. Burgdorf, 53 Mo. 65; Walter v. People, 50 Barb. 144; Strang v. People, 24 Mich. 1; Moran v. People, 25 Mich. 356; Pollard v. State, 2 Iowa 567; State v. Murphy, 6 Ala. 765; People v. Dohring, 59 N. Y. 374; State v. Jaeger, 66 Mo. 173.

D. H. McIntyre, Attorney General, for the State.

The name of the person alleged to have been raped being the name of a woman, together with the use of the words “her” and “against her will,” shows with certainty that the person was a female, and the indictment is, therefore, good. State v. Farmer, 4 Ired. (N. C.) 224; State v. Hussey, 7 Iowa 409; Taylor v. Comm., 20 Gratt. (Va.) 825. The person raped is always a competent witness, and may be asked if she made complaint of the injury. Regina v. Eyre, 2 Foster & Finlason 579.

NORTON, J.

The defendant was indicted at the March term, 1881, of the circuit court of Cass county, for the crime of rape. He was found guilty on trial, and his punishment assessed to imprisonment in the penitentiary for six years. The case is before us on appeal, and we are asked to reverse the judgment because of alleged insufficiency of the indictment, and the action of the court in admitting improper evidence, in refusing proper and giving improper instructions, and the further ground that the verdict is not supported by the evidence.

1. RAPE indictment.

The indictment is as follows: “The grand jury for the State of Missouri, empaneled, sworn and charged to inquire within and for the body of the county of Cass, and State aforesaid, upon their oaths present and charge that Henry Warner, on the 24th day of March, in the year of our Lord 1881, at the county of Cass, and State of Missouri, in and upon one Mary A. Culberson, unlawfully, violently and feloniously did make an assault, and her, the said Mary A. Culberson, then and there unlawfully, forcibly and against her will, feloniously did ravish and carnally know, against the peace and dignity of the State.” It is objected that the indictment is defective in not alleging that Mary A. Culberson was a woman. This objection is untenable. It is said in section 574, Wharton Criminal Law, page 508: “Sex need not be expressly eo momine averred. Thus, where an indictment for rape charges that the defendant “with force and arms, etc., in and upon Mary Ann Taylor, * * violently and feloniously did make an assault, and her, the said Mary Ann Taylor, then and there violently and against her will, feloniously did ravish and carnally know,' the court can and must see with certainty that Mary Ann Taylor was a female.”

2. ______: instructions.

At the close of the evidence on behalf of the State, the defendant asked the court to instruct the jury that under the evidence they must acquit the defendant. It is only where there is no evidence tending to prove the offense charged that such an instruction should be given. In this case the prosecutrix swore positively that defendant had carnal connection with her against her will and consent, using the necessary force to accomplish his purpose, overcoming such resistance as she was able to make. This instruction was, therefore, properly refused.

3. ______: verdict: evidence.

It is also claimed that the verdict is against the evidence, and that, for that reason, the judgment ought to be reversed. It was held by this court in the case of the State v. Musick, 71 Mo. 401, that it will not reverse a judgment, even in a criminal case, on the ground that the verdict is against the evidence, unless there is a total absence of evidence, or it fails so completely to support the verdict that the necessary inference is, that...