View source for State v. Frank(Missouri): February 10, 1891

For a chronological, annotated timeline of ''all'' the 19th century cases that mention "buggery," "crime against nature," or "sodomy" see:

=[[Timeline: Published U.S. State Appeals Case Reports, 1800-1899]]=


The following legal case is one of the 19th century cases those that mention "buggery," "crime against nature," or "sodomy".




=Published Decision of the Missouri Supreme Court=

==STATE v. FRANK==
<ref>This is the text of ''State v. Frank,'' 103 MO 120(1890, Feb)</ref>


THE STATE V. FRANK, Appellant.

DIVISION TWO.

1. Criminal Law: ATTEMPT TO COMMIT SODOMY. An attempt to
commit sodomy was an offense at common law, and is a crime in
itself and punishable as such under Revised Statutes, 1879, section
1645. declaring that every person who shall attempt to commit an
offense prohibited by law, and who shall do any act toward its
commission but shall fail in its perpetration or be prevented or
intercepted in its execution shall, on conviction, be punished as
therein provided.

2. ---: INDICTMENT FOR SODOMY: CONVICTION OF ATTEMPT: PRACTICE.
A defendant may, under Revised Statutes, 1879, section
1655, be acquitted of the offense charged in the indictment and
convicted of any offense, the commission of which is necessarily
included in that charged against him. He may be convicted of
an attempt to commit sodomy under an indictment charging
him with sodomy.

3. ---: ATTEMPT TO COMMIT SODOMY: INSTRUCTION, An instruction
which follows the language of the statute in declaring what
acts shall constitute an attempt to commit a crime is sufficient.
(R. S. 1879. sec, 1645.)

Appeal from Andrew Circuit Court.-HON. C. A.
ANTHONY, Judge.

AFFIRMED.

Booher & Williams for appellant.

The court erred in giving instruction, numbered 1,
on behalf of the state. The crime charged against the
defendant does not consist of different degrees, and for
that reason the provisions of sections 1654 and 1655,
Revised Statutes of 11379, do not apply. R. S. 1879,
sec. 3796; State v. Gabriel, 88 Mo. 631-643; State v.

[End of page 120]
.
Burk, 89 Mo. 635; State v. Johnson, 91 Mo. 439-444 j
State v. Lowe, 93 Mo. 547-574. For the reason above
stated, the court erred in refusing to give instructions,
numbered 1 and 2, on behalf of the defendant, and we
called the attention of the court upon this point to the
authorities cited above.

John M. Wood, Attorney General, for the State.
The charge of the commission of the offense necessarily
included the charge of the attempt to commit the
offense. The offense could not be committed at all,
without first the attempt, followed by the actual perpetration
of the crime; hence an attempt to commit the
offense is necessarily included in the charge of its
actual commission. The evidence showed, clearly, an
attempt to commit the offense charged, and under the
provisions of sections 1655 and 1645, Revised Statutes,
1879, the instructions complained of were proper.

MACFARLANE, J.-Defendant was indicted for the
crime of sodomy. Upon a trial under the indictment
the evidence tended to prove an unsuccessful attempt to
commit the offense charged. The jury was instructed
"that if the defendant made an attempt to copulate, or
have intercourse, with said ,dog, and in such attempt did
any act toward the commission of said offense and
failed in the perpetration of said offense, or was prevented
or intercepted in executing the same, then and
in that case the jury will find the defendant guilty of an
attempt to commit the offense charged, and so state in
their verdict, and assess his punishment at imprisonment
in the penitentiary for not less than two years."
The jury found defendant guilty of an attempt to
commit the crime charged and fixed his punishment at
two years' imprisonment in the penitentiary, and judgment
was entered accordingly, from which defendant
prosecutes his appeal.

[End of page 121]

I. It is contended by defendant's counsel that sections 1654, 1655 and 1927, Revised Statutes, 1879, do not
apply to offenses of this character, and unless defendant
had been found guilty of the actual commission of
the crime charged he should have been acquitted.
Section 1539 fixes the punishment of the crime of
sodomy, and section 1645 provides that" every person
who shall attempt to commit 'an offense prohibited by
law, and in such attempt shall do any act towards the
commission of such offense, but shall fail in the perpetration
thereof, or shall be prevented or intercepted in
executing the same, upon conviction thereof," should be
punished as therein provided.

There can be no doubt, under this section, that an
attempt to commit the offense of sodomy is a crime in
itself, and punishable as such. So it was also at common
law. 2 Bish. Crim. Law [3 Ed.] sec. 1174; 1 Rus.
on Crimes, 939; 1 Bish. Crim. Law [3 Ed.] sec. 689;
Rex 'I) • .Hickman, 1 Moody, 34; Reg. v. Rowed, 6 JUr.
396.

II. Defendant's counsel insists further that, though
the attempt be a crime in itself, a conviction cannot be
had therefor, under an indictment for the actual perpetration
of the offense, and cite confidently as authority
for their contention the cases of State v. Johnson,
91 Mo. 444, and State 'I). Burk, 89 Mo. 635. These cases,
it is contended, decide that sections 1654, 1655 and 1927,
are only applicable to those crimes, to which the law has
fixed different degrees. The opinion in the case of State
v. Johnson, supra, gives strong ground for the contention
; but, if the court in that case, intended to decide
that section 1655 has no application to cases other than
those of which there are different degrees, which it
strongly intimates we are not willing to give it our
approval, or to follow it. There •can be no doubt that
sections 1654 and 1927 do only apply to that class of cases
of which there are different degrees. Section 1655 is much

[End of page 122]

broader in its scope, and was evidently intended to
apply to another class of offenses altogether, otherwise
it would be entirely superfluous. The latter clause of
the section provides that, in all other cases, "the jury or
court trying the case may find the defendant not guilty
of the offense as charged, and find him guilty of any
offense, the commission of which is necessarily included
in that charged against him." '£he learned judge who
wrote the opinion in case of State v. Johnson, supra,
draws his conclusion from what he supposed had been
decided in the case of the State v. Burk, 89 Mo. 635.
An examination of that case will show that the decision
was misconstrued in fact; as we read the opinion,
it decides, as to the scope of section 1655, the very
reverse, and that it applies only to cases in which there
are no degrees fixed by law.

In that case the indictment was under section 1262
for felonious assault with intent to kill, and defendant
was found guilty of the lesser offense under section
1263. The question in the case was whether that could
be done, defendant insisting- that a law justifying a conviction
for a different offense than the one charged,
. would be unconstitutional. To meet this objection the
court held that the offenses described in sections 1262
and 1263 were distinct offenses, and not different
degrees of the same offense, and that by virtue of section
"1655 defendant was liable to be convicted of the
lesser offense mentioned in section 1263 on an indictment
under section 1262. The court then goes on to say
speaking through Judge RAY: "If the offenses specified
in sections 1262 and 1263 are, as we have held, distinct
offenses and not different degrees of the same offense,
then section 1927 of the Revised Statutes, 1879, has no
reference to the case at bar. That section, it is manifest,
has application only to that class of offenses which by
law consists of different degrees of the same offense,
such as those specified in section 1654, Revised Statutes,

[End of page 123]

1879. The offenses mentioned in section 1262 and 1263
are not of that class, and under the law have no degrees ;
consequently, the requirements of section 1927 can, in
no event, have any application to the case at bar. The
verdict of the Jury in this case is good under either
section 1262 or 1263, since both authorize an assessment
of two years' imprisonment in the penitentiary."
It will be seen that the opinion nowhere states, or
intimates, that section 1655 applies to those offenses
only, of which there are different degrees; indeed, the
argument is to show that that section does not apply
to that class of offenses, but to such as are not classed
into degrees.

Previous to the enactment of this statute (sec. 16fi5 ),
unless the exact crime charged was proved, the state
was defeated in its prosecution, and the criminal either
went free or the state was put to the trouble and delay
of another indictment and trial. State v. Webster, 77
Mo. 566. To obviate the trouble, doubtless, the act was
passed. The first clause of this section applying to
assaults has been sustained by this court in a number of
cases, though there are no degrees of such offenses fixed
by law. State v. Johnson, 81 Mo. 60; State v. Burk, supra;  State v. Schloss, 93 Mo. 361 ; State v. Melton, 102 Mo. 683.
No reason has been shown, or can be seen, why the
second clause of said section should not also be valid.
Indeed, at common law, where offenses are included
within one another, a party indicted for the larger of
those may be convicted of the lesser. 1 Bish. Crim.
Law [3 Ed.] sec. 807. ""Whatever the offense alleged,
any other offense may be shown to have been committed,
and the indictment will be sufficient, provided the
offense proved is included also within the words of the
allegation." 1 Bish. Crim. Law, sec. 809. It has
been denied that one indicted for a substantive offense
in the absence of a statute authorizing it, can be convicted
for an attempt to commit the same offense. We

[End of page 124]

do not find that the power has ever been questioned
when authorized by a proper statute. 1 Bish. Crim.
Law, sec. 813; Clifford  v. State, 10 Ga. 422.
We are not able to conceive how it could be possible
to prove the offense charged against this defendant
without proving also the attempt to commit it, and the
evidence sufficiently shows an attempt. The action of
the court in its instruction was clearly authorized by
section 1655, Revised Statutes, 1879.
Objection is made to the instruction in not pointing
out and advising the jury as to the specific acts that
would constitute all attempt to commit the offense.
The instruction follows the language of the statute
(sec. 1645), and is we think sufficiently specific. If the
evidence had failed to show any act towards the commission
of the offense charged, the court would have so
instructed the jury. Finding no error in the record the
judgment is affirmed. All concur.





=Link to the PDF of the Original Case Report=

[http://books.google.com/books?id=tUYtAQAAMAAJ&dq=editions%3AGGcSWpq35DkC&pg=PA120#v=onepage&q&f=false ''The State v. Frank, 103 Mo. 120 (1890)]

=Downloads of PDFS of Page Images of Court Documents=
==Record from the Appellate Case before the Missouri Supreme Court==


*[[Media:Frank_Case_File_1.pdf |State v. Frank, Case File, part 1]]

*[[Media:Frank_Case_File_2.pdf |State v. Frank, Case File, part 2]]

*[[Media:Frank_Circuit_Court_Record_1.pdf |State v. Frank, Circuit Court Record, page 1]]

*[[Media:Frank_Circuit_Court_Record_2.pdf |State v. Frank, Circuit Court Record, page 2]]


''Original court documents held by the Missouri State Archives''

==See also:[[Timeline: Published U.S. State Appeals Case Reports, 1800-1899]]==

=Notes=
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