The State v. Perrigin
| Decision Date | 26 May 1914 |
| Parties | THE STATE v. GROVER PERRIGIN, Appellant |
| Court | Missouri Supreme Court |
Appeal from Greene Criminal Court. -- Hon. C. H. Skinker, Judge.
Affirmed.
Gideon & West and J. B. Delaney for appellant.
John T Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
(1) The information follows the language of the statute and sufficiently charges the offense. Sec. 4472, R. S. 1909; State v. Hunter, 171 Mo. 439; State v McCullough, 171 Mo. 576; State v. Eubanks, 199 Mo. 123; State v. Hamey, 168 Mo. 167. (2) The verdict of the jury reads: "We, the jury, find the defendant guilty as charged," and is in accordance with the statute. Sec. 4472, R. S. 1909; State v. Hamey, 168 Mo. 167; State v. Bishop, 231 Mo. 415. (3) The record does not show that defendant excepted to the action of the court in giving its instructions, therefore, any error in the instructions given are not reviewable. State v Cantlin, 118 Mo. 100; State v. Hillsback, 132 Mo. 348; State v. Sacre, 141 Mo. 64; State v. Bailey, 190 Mo. 257. (4) Defendant's refused instruction was rightfully refused, because by that instruction the jury was told that in passing upon the question of the previous chaste character of the prosecutrix they were authorized to consider her conduct and general reputation for virtue and chastity since the date of her first indulgence. State v. Knock, 142 Mo. 526; State v. Day, 188 Mo. 369.
Appellant was charged in an information filed by the prosecuting attorney of Greene county with a violation of section 4472, Revised Statutes 1909, in having carnal knowledge of an unmarried female of previously chaste character, between the ages of fourteen and eighteen years, the appellant being at the time more than sixteen years of age. Upon a trial he was found guilty, the verdict being in the following form: "We the jury find the defendant guilty as charged."
After unsuccessful motions for a new trial and in arrest, a judgment was rendered herein under which appellant was sentenced by the court to two years' imprisonment in the penitentiary. From this judgment he appeals to this court.
Counsel for appellant have not favored us with a brief or any memorandum setting forth the errors assigned other than as is disclosed by the record, which it is our duty to examine.
Appellant is under recognizance pending this appeal.
I. The sufficiency of the information is challenged. Omitting the formal parts, name of the prosecutrix, and the signature of the prosecuting attorney, it is as follows: "that Grover Perrigin, late of the county and State aforesaid, on or about the day of March, A. D. 1910, at the county of Greene and State of Missouri, he, the said Grover Perrigin, being then and there over the age of sixteen years, did then and there unlawfully and feloniously have carnal knowledge of unmarried female of previous chaste character, to-wit: , she the said being then and there between the ages of fourteen and eighteen years, to-wit, of the age of fifteen years;
"Contrary to the form of the statute in such cases made and provided against the peace and dignity of the State."
The offense charged is of statutory origin. In charging offenses of this character the language of the statute alone will suffice if it sets forth all of the constituent facts necessary to constitute the offense; if not, then in addition to the language of the statute such constituent facts must be pleaded. [State v. Maurer, 255 Mo. 152, 164 S.W. 551; State v. Hilton, 248 Mo. 522, 154 S.W. 729; State v. Gabriel, 88 Mo. 631.]
In the instant case all of the necessary elements of the offense are set forth in the statute, and hence the information which embodies its language is not subject to valid objection. The use of the words in the information: "have carnal knowledge of unmarried female," instead of "of an unmarried female" is simply an omission of the word "an," not in any manner misleading, which did not destroy the sense and is too trifling to merit serious consideration.
Precedents in support of the sufficiency of this information, varying only in minor and unimportant particulars, may be found in the following cases: State v. Hunter, 171 Mo. 435, 71 S.W. 675; State v. McCullough, 171 Mo. 571, 71 S.W. 1002; State v. Hall, 164 Mo. 528, 65 S.W. 248; State v. Knock, 142 Mo. 515, 44 S.W. 235.
II. The statute (Sec. 4472, supra) upon which this prosecution is based prescribes certain punishment for the offense charged "in the discretion of the court;" this authorizes the jury to return a general verdict and leaves the fixing of the punishment to the court. Appellant complains of this statute as a violation of his constitutional rights, in that he is entitled, within the limits prescribed, to have the jury fix his punishment. This statute was learnedly reviewed by Gantt, J., in State v. Hamey, 168 Mo. 167, 67 S.W. 620, in which it was held that no constitutional right of a defendant was violated in authorizing either the court or the jury to fix the punishment in a felony case. That the constitutional provisions guaranteeing an accused "a speedy, public trial by an impartial jury of the county" (Art. 2, sec. 22), and that "the right of trial by jury, as heretofore enjoyed, shall remain inviolate" (Art. 2, sec. 28) meant, as at common law, a jury of twelve men, indifferent between the accused and the State, summoned from the vicinage where the crime was alleged to have been committed, left free to act according to the dictates of their own judgment, and unanimous in their verdict. That if these requisites are found to be present, the accused has no ground of complaint, because, under the common law, the court fixed...
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