The State v. Hughes
| Decision Date | 26 May 1914 |
| Citation | 167 S.W. 529,258 Mo. 264 |
| Parties | THE STATE v. J. A. HUGHES, Appellant |
| Court | Missouri Supreme Court |
Appeal from Atchison Circuit Court. -- Hon. William C. Ellison Judge.
Affirmed.
L. D Ramsay for appellant.
(1) The prosecuting attorney elected to stand on the act as proven on the 26th day of May, 1913. There was no amendment of the information. Sunday was May 25th, but at four o'clock in the morning it would be May 26th, or about one month before the law appellant is charged with violating went into effect. State v. Cox, 29 Mo. 475; State v. Stevens, 62 Mo.App. 232; State v. Sills, 56 Mo.App. 408; State v. Ryan, 30 Mo.App. 159; State v Clinkenbeard, 135 Mo.App. 189; State v. Ross, 25 Mo. 426; State v. Hesseltine, 130 Mo. 468. Words of a statute which are descriptive of the offense and which constitute a part of the statutory definition cannot be omitted from an indictment based upon the statute without rendering it fatally defective. In matters of this kind it is one of the tests of the sufficiency of an information or indictment that every allegation may be taken as true, and yet the defendant be guilty of no offense or not guilty of the offense charged, or attempted to be charged. Com. v. Harris, 13 Allen, 539; Com. v. Collins, 2 Cush. 558; Turner's Case, 9 Q. B. 80; Reg. v. Harris, 1 Denison, C. C. 466; Reg. v. Rowlands, 2 Denison, C. C. 377; State v. Bengsch, 170 Mo. 104; State v. Fanning, 38 Mo. 409. Had there been no change in the statute, i. e., had it read as it now reads, all the way back, there would be no limitations, as rape is a capital offense, but the statute, under which appellant is charged, only existed back to June 26, 1913. All offenses before that date, if proven, were offenses of some statute not charged in the information. After the evidence was in the court sought to change the instructions to make them say female child under "14" instead of "15," as originally written, but the information must stand on its own bottom, and cannot be supported or propped by instructions. Instructions were right, probably, but were broader than the information. State v. Hesseltine, 130 Mo. 474; State v. Smith, 119 Mo. 447. The State elected to stand on May 26, 1913, exactly one month before the statute alleged to have been violated in the information went into effect. (2) At four o'clock Monday morning, May 26, 1913, by the testimony of the prosecuting witness, appellant and the witness were alone in his bed-room, in his bed. By the State's evidence, it will be seen that the other inmates of the house were hard of hearing and soundly sleeping, so that the only person in this world that could go on the stand and dispute the simple story of the prosecuting witness was the appellant, defendant on trial, and he did not testify as a witness. Yet, in spite of the many cautions given by the court to prosecuting attorney on this point, it will be seen that after electing before the jury to stand on that four o'clock bed-room transaction, in his argument to the jury, he said there was not a single word coming from a witness in the witness chair contradicting anything that the little girl testified to. Defense promptly called attention of trial court, but court refused to reprimand. State v. Snyder, 182 Mo. 465; State v. Eisler, 220 Mo. 67. Just one count in the information and after the evidence pointed out the 26th day of May, 1913, appellant objected to a latter offense being proven, but his objection was overruled by the court. In matters of this kind there is a difference in proving prior offenses and later offenses.
John T. Barker, Attorney-General, for the State; Paul P. Prosser of counsel.
(1) Under the facts of this case, the evidence tending to show the commission of two different offenses, the court properly required an election at the close of the testimony for the State. State v. Palmberg, 199 Mo. 241; State v. Pruitt, 202 Mo. 51; State v. Schenk, 238 Mo. 458; State v. Hurley, 242 Mo. 459; State v. Henderson, 243 Mo. 508. (2) The information charges that the appellant committed the offense "in and upon one ---, a female child under the age of fifteen years, to-wit, of the age of twelve years." Either under the original section or the amended section, the information sufficiently charges the offense. In the former instance, the phrase, "under the age of fifteen years," will be regarded as surplusage, and the information held good, especially after verdict, since the defect, if any, in no wise "tends to the prejudice of the substantial rights of the defendant upon the merits." 33 Cyc. 1445; Sec. 5115, R. S. 1909; State v. Van Zant, 71 Mo. 543; State v. Houx, 109 Mo. 659; State v. Erickson, 81 Minn. 134; State v. Fetterly, 33 Wash. 601; People v. Gardner, 98 Cal. 128; State v. Newton, 44 Iowa 47. (3) The remark of counsel for the State, in the argument before the jury, that "there was not a single word coming from a witness in the witness chair contradicting anything that the little girl testified to," cannot be construed into a comment on the appellant's failure to testify. State v. Ruck, 194 Mo. 441.
Appellant was convicted in the circuit court of Atchison county for a violation of section 4471, Revised Statutes 1909, Laws 1913, p. 218, and his punishment assessed at six years' imprisonment in the penitentiary, where he is now confined. From the judgment rendered herein he appeals to this court.
The information, omitting the formal parts, name of prosecutrix, and the signature of the prosecuting attorney, is as follows: "that J. A. Hughes, on or about the 14th day of July, 1913, at the county of Atchison, in the State of Missouri, in and upon one , a female child under the age of fifteen years, to-wit, of the age of twelve years, unlawfully and feloniously did make an assault, and her, the said , then and there unlawfully and feloniously did carnally know and abuse; contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State."
Two different assaults by appellant on the child were proved, one May 26, 1913, and the other July 14, 1913. On motion of appellant, the State was required to designate the offense on which it relied for conviction, and the prosecuting attorney elected to stand on that of May 26, 1913. The child was in her eleventh year at the time of the commission of the alleged offenses by appellant; the evidence in regard to same was confined to her testimony. The defense introduced no witnesses except as to the child's character for truth and veracity. It will serve no helpful purpose either to morals or jurisprudence to dwell further upon the facts.
Appellant urges as grounds of error: First, that the information is insufficient; second, that the manner in which the State was required to make an election was improper; third, that certain remarks of the prosecuting attorney were prejudicial; fourth, that the evidence was insufficient. We set forth at length his contention in regard to the information as same was submitted by his counsel at the trial, as follows:
"The information is insufficient in law and does not charge any offense against the defendant in this, that the information charges that the offense was committed by having carnal knowledge of (name of prosecutrix), a female child under the age of fifteen years and the proof and election by the State fixes the offense as of the exact date of May 26, 1913, at which said date there was no law in this State making it an offense, or rape, to have carnal knowledge of a female child under the age of fifteen years."
I. The information charges that the assault was committed "in and upon" (here naming her) "a female child under the age of fifteen years, to-wit, of the age of twelve years."
The gravamen of the offense consists, under the original section, in carnally knowing a female child under the age of fourteen years, and under the amendment in a like knowledge of a female child under the age of fifteen years. While, therefore, it is necessary in a criminal charge under this statute, where no exact age is stated, that an allegation be made that the child is within the statutory limit, where the age is stated and it is within such limit, then an allegation in addition thereto as to the general limit is a mere redundancy. The information in this case would, therefore, have been sufficient if the allegation under the age of fifteen years had been omitted. If its omission was authorized, then its addition worked no injury. A precedent sustaining this conclusion is to be found in State v. Griffin, 249 Mo. 624, 155 S.W. 432. The constitutional requirement that the information shall enable the accused to clearly understand the nature and cause of the accusation against him is fully met in this case. Appellant's contention in this regard is without merit.
II. Appellant complains of the action of the trial court in not requiring the State to elect upon which offense it would rely for a...
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