State v. White
| Decision Date | 31 March 1865 |
| Citation | 35 Mo. 500 |
| Parties | THE STATE OF MISSOURI, Respondent, v. HENRY C. WHITE, Appellant. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Criminal Court.
L. M. Shreve, for appellant.
If the proof shows anything, it proves a rape; the jury return that it is no rape, but an assault to commit one. The second section of Crimes and Punishments (R. C. 1855, p. 637) declares, “that no person shall be convicted of an assault with intent to commit a crime, or of any other attempt to commit any offence, when it shall appear that the crime intended, or the offence attempted, was perpetrated by such person at the time of the assault, or in pursuance of such attempt.”
In the face of the proofs that the offence was perpetrated, the jury find it was only attempted.
Can it be that particular acts of lewdness are not proper subjects of inquiry? Upon general principles, I am aware that authors on evidence say that general character is the subject of inquiry; but in this class of cases, I venture no author has undertaken to restrict this testimony who understands himself on the subject.
J. P. Vastine, for respondent.
The jury are the sole judges of the facts; some of the testimony goes to sustain the first count of the indictment, and other of the testimony to sustain the second. If either count is proven, it is the duty of the jury to designate it. To sustain the ruling of the court below upon the question as to a particular act of unchastity, I refer the court to the case of McCombs v. The State, 8 Ohio, 643.
At the May term, 1864, of the St. Louis Criminal Court, the defendant was indicted for a rape alleged to have been committed on the person of one Margaret Kessebring, over the age of twelve years. The indictment contained a count, also, for an assault with intent to commit a rape. The principal witness examined by the State was the said Margaret Kessebring, whose testimony was of such a character as to call for the utmost caution on the part of the jury. But if full faith and credit are to be given to her statement, then the act was fully consummated, and the jury were not warranted, under our statute, in convicting the defendant of an assault with intent to commit a rape.
By the 2d section of the 9th art. of our act relating to crimes and punishments, it is provided that, “No person shall be convicted of an assault with intent to commit a crime, or of any other attempt to commit any offence, when it shall appear...
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State v. Gadwood, 34750.
...shall appear from substantial evidence. Such was the construction put upon them in the first case construing the statute, State v. White, 35 Mo. 500, 116 S.W.2d 56 wherein the charge was rape. The opinion said the testimony of the prosecuting witness "was of such a character as to call for ......
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State v. Apley
...417; Com. v. Regan, 105 Mass. 593; Com. v. Harris, 131 Mass. 336; People v. McLean, 71 Mich. 309, 15 Am. St. Rep. 263, 38 N.W. 917; State v. White, 35 Mo. 500; State v. Forshner, 43 N.H. 89, 80 Am. Dec. State v. Knapp, 45 N.H. 148; State v. Campbell, 20 Nev. 122, 17 P. 620; McCombs v. State......
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