The State v. Hayden

• Decision Date: 09 November 1897
• Citation: 42 S.W. 826,141 Mo. 311
• Parties: The State v. Hayden, Appellant
• Court: Missouri Supreme Court

42 S.W. 826

141 Mo. 311

The State v. Hayden, Appellant

Supreme Court of Missouri, Second Division

November 9, 1897

Appeal from Lafayette Criminal Court. -- Hon. John E. Ryland, Judge.

Reversed and defendant discharged.

John Welborn and John S. Blackwell & Son for appellant.

(1) There was no evidence of sufficient probative force to convict the defendant of the crime for which he was tried and the trial court should have instructed a verdict for the defendant either at the close of the State's evidence or at the close of all the evidence given in the case. (2) There was no evidence upon which to predicate an instruction for an assault with intent to commit rape, even though the defendant was the person who was at the window of Miss Vaughan's room. There was no assault committed on Miss Vaughan by the person at her window on the night in question. State v Priestley, 74 Mo. 24; State v. Owsley, 102 Mo 678; State v. Scholl, 130 Mo. 400. (3) "In every criminal prosecution the State assumes to show, as an essential element in his guilt, the presence of the defendant at the commission of the crime. This being true, a simple plea of not guilty, without other or further plea, puts the State to the proof of his presence. If the State fails to show that the defendant was present when the crime was committed, when without his presence it is impossible for him to be guilty, the prosecution must fail." State v Taylor, 118 Mo. 166.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) The indictment charges two offenses. No error was made by the trial court in refusing to quash it on that account. The court, however, properly sustained defendant's motion to compel plaintiff to elect on which count it would stand. State v. Porter, 26 Mo. 201; State v. Turner, 63 Mo. 437; State v. Mallon, 75 Mo. 356; 1 Bishop's Criminal Procedure, sec. 449. (2) The evidence, though circumstantial, is sufficiently strong to warrant the trial court in submitting the case to the jury. All the elements necessary to constitute the crime with which the defendant is charged properly appeared in evidence. The question as to the weight and strength of the evidence necessary to convict the defendant beyond the reasonable doubt required by law, is a matter resting solely within the province of the jury. This court will not undertake to pass upon the weight or sufficiency of the evidence unless there is a total failure of proof.

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

OPINION

Burgess, J.

At the October term, 1896, of the criminal court of Lafayette county, the defendant, a negro, was indicted by the grand jury of said county and charged with two separate and distinct offenses, in two separate counts. In the first count in the indictment he was charged with feloniously assaulting one Jennie Vaughan with intent to ravish and carnally know her, and the second count charged him with attempting to break into the dwelling house of said Jennie Vaughan with the intent to steal, etc. The offenses were alleged to have been committed at said county on the night of the twenty-second day of March, 1896.

At the June term, 1897, of said court, on motion of defendant the court required the State to elect upon which count it would proceed to trial, and it having elected to proceed on the first count, defendant was put upon his trial, convicted of assault with intent to commit rape, and his punishment fixed at two years' imprisonment in the penitentiary. After unsuccessful motions for new trial and in arrest he appeals.

At the time of the commission of the alleged offense Jennie Vaughan lived with her father in the town of Dover in Lafayette county. On that night she, Miss Ada Hodges, Mrs. Liggon and Florence Beattie, a little girl, were at the home of Jennie Vaughan. They all retired quite early and went to sleep. Some time between nine and ten o'clock Jennie Vaughan was awakened by a noise at the west window of her room, when she arose from her bed and called to Miss Hodges to get up. Miss Vaughan lighted a lamp, went to the window and found that the upper pane in the lower sash in the window had been cut out and the stick that had been used to hold the window down had been removed. As soon as Miss Vaughan got to the window, and about the time she discovered that the glass was out and the stick gone, she also discovered that there was a person on the outside of the house and close to the window. Miss Hodges then came to the window, and while she and Miss Vaughan were there together the window was raised, or attempted to be raised, several times by...