State v. Wray

• Decision Date: 28 March 1892
• Citation: 19 S.W. 86,109 Mo. 594
• Court: Missouri Supreme Court
• Parties: STATE v. WRAY.

19 S.W. 86

109 Mo. 594

STATE v. WRAY.

Supreme Court of Missouri, Division No. 2.

March 28, 1892.

STATUTES — PRESUMPTION OF COMPLIANCE WITH CONSTITUTIONAL REQUIREMENTS — REVISION — ASSAULT WITH INTENT TO COMMIT RAPE — INDICTMENT.

1. Upon demurrer to an indictment on the ground that the statute on which it is based was not passed in a constitutional manner, the presumption of the validity of the law must prevail, since, until the journal entries of the legislature are brought before the court, they will not be considered in passing upon the validity of the law.

2. The failure of the revision committee to note, at the lower margin of Rev. St. § 3480, the amendment of Rev. St. 1879, § 1253, as they were required to do by Rev. St. § 6609, does not affect the validity of the section as amended, since these notations were only intended to facilitate the examination of the statutes.

3. Rev. St. § 3480, defines rape as "either carnally and unlawfully knowing any female child under the age of 14 years, or forcibly ravishing any woman of the age of 14 years or upwards;" and section 3490 makes it a crime to commit "an assault with intent to commit any rape." Held, that an indictment for assault with intent to commit rape upon a child under 14 years of age need not allege that there was any violence used, or that the act was done without the child's consent. State v. Meerihart, 73 Mo. 563, followed.

Appeal from circuit court, Morgan county; E. L. EDWARDS, Judge.

Indictment of James M. Wray for assault with intent to commit rape. A demurrer to the indictment was sustained, and the state appeals. Reversed.

A. W. Anthony and John D. Bohling, for respondent. The Attorney General, for the State.

MACFARLANE, J.

A demurrer to the indictment was sustained, and the state appealed. The charges contained in the indictment were as follows: "That James M. Wray, late of the county of Morgan, on or about the 22d day of August, A. D. 1890, at the said county of Morgan, in the state of Missouri, in and upon one Nora E. Gaither, a female child under the age of fourteen years, to-wit, of the age of thirteen years, unlawfully and feloniously did make an assault, with the intent her, the said Nora E. Gaither, then and there feloniously to unlawfully and carnally know and abuse, contrary," etc. Two objections were made to the indictment:

1. That section 3480, under which the indictment was drawn, was not enacted with the formalities made mandatory by the constitution; and the word "fourteen," contained in the statute, was not contained in the bill as passed by the general assembly. The statute is upon its face presumptively valid. The statute roll on deposit in the archives of the state, bearing the approval of the governor, and on its face showing that all prerequisite constitutional requirements have been complied with, corresponds exactly and literally with the published statutes. The objection to this law was raised by demurrer. No evidence was therefore introduced to rebut the strong presumption the law raises that the legislature proceeded regularly and according to all constitutional mandates in the enactment of the law. This presumption is conclusive, except as to matters upon which the constitution makes the validity of the enactment rest. In respect to such matters the constitution is mandatory, and the rolls themselves may be contradicted by journal entries and the law itself overthrown if these entries show clearly, and beyond all doubt, a want of conformity to the mandates of the constitution. State v. Mead, 71 Mo. 268; Jennings v. Russell, (Ala.) 9 South. Rep. 422; Speer v. Mayor, 85 Ga. 52, 11 S. E. Rep. 802; People v. McElroy, 72 Mich. 447, 40 N. W. Rep. 750; Weyand v. Stover, 35 Kan. 545, 11 Pac. Rep. 355. It may also be said that courts may, and often do, take judicial notice of the journal entries of the houses of the general assembly. At the same time they are only evidence upon which facts are to be determined, though upon these facts the validity of law may ultimately depend. This evidence should be brought before the court. The Revised Statutes as published by the state are made prima facie evidence of the enrolled laws, of which they purport to be copies. Rev. St. 1889, § 6613. The presumptions of validity which attach to the original rolls follow and attach also to these verified published copies. The Revised Statutes then stand as embodying the laws of the state, and it devolves upon any one attacking the validity of any of these laws on the ground that constitutional requirements had not been observed in their enactment to prove the fact of such omissions by the journal entries. Courts are satisfied to take the statutes as furnished by the legislature, and give them full faith and credit, without seeking in each case to...