View source for State v. Smith(Missouri): January 19, 1897

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. SMITH==
<ref>This is the text of ''State v. Smith," 137 Mo. 25 (1897, Jan)</ref>

THE STATE V. SMITH, Appellant.

Division Two, January 19,1897.

1. Criminal Practice: ATTEMPT AT SODOMY: INDICTMENT. It is sufficient
in an indictment for an attempt to commit sodomy to state the
offense as prohibited by the statute, and some act done towards its
perpetration.

2. - -: WITNESS: INDICTMENT. The fact that the name of a witness
was not indorsed on the indictment is not a sufficient ground for excluding
his testimony.

Appeal from St. Louis Criminal Court. - HON. THOMAS
. B. HARVEY, Judge.

AFFIRMED.

Claiborne & Anderson for appellant.

(1) The crime of sodomy can only be perpetrated 
upon one particular part of the body, to wit, the anus,
and it must be charged that the attempt was made upon
that part of the body. To unbutton the trousers
and expose the bare body and lie upon the bare body,

[End of page 25]

does not constitute the offense of attempt at sodomy.
Criminal Defenses, p. 103; R. v. Jacobs, R. & R. 331. (2) The evidence is insufficient to sustain the conviction.

R. F. Walker, attorney-general, and C. O. Bishop
for the state.

(1) The name of the witness Gilmore did not appear
on the back of the indictment, still this did not
preclude the state from calling him. R. S. 1889, sec.
4097; State v. Pagels, 92 Mo. 300. (2) The instructions
were correct and fully covered the case. (3) The
indictment is sufficient. (4) The verdict is supported
by the evidence.

GANTT, P. J.-The appellant was indicted at the
July term, 1895, of the St. Louis criminal court for an
attempt to commit and perpetrate the crime of sodomy
or buggery. He moved to quash the indictment as insufficient,
but his motion was overruled. At the October
term, 1895, he was put upon his trial and convicted.
His motions in arrest and for new trial were
overruled, and in accordance with the verdict he was
sentenced to the penitentiary.

I. The indictment is entirely sufficient. It follows
the long approved precedents of the common law.
Archbold's Crim. Prac. & Plead., Pomeroy's Notes
[8 Ed.], p. 1017. It is sufficient in charging an attempt
to commit an offense under the statute to state clearly
what offense prohibited by law the accused attempted
to commit, and state some act committed toward the
perpetration of such offense.
At the common law it was only necessary to aver
that the defendant "unlawfully did make an assault
upon C. D., and him, the said C. D., did then beat and
ill treat with intent then feloniously, etc., against the

[End of page 26]

order of nature to have a venereal affair • • • and
then feloniously, wickedly, and against the order of
nature with the said C. D. to commit and perpetrate
the abominable crime of buggery against the form,"
etc. See citation from Archbold, supra.
This indictment alleges that "in said attempt and
toward the commission of said offense, etc., he then
and there feloniously did forcibly compel the said Henry
Spreen to unbutton the trousers and expose the bare
body of him, the said Henry Spreen, and then and
there feloniously did lie upon the body of him, the said
Henry Spreen," and "then and there did fail in the
perpetration of said offense," etc. The acts here
charged, in connection with what precedes, are enough
to show something done by the accused toward the
perpetration of the crime of sodomy.

II. The testimony on behalf of the state tended
to show that the appellant was a police officer of the
city of St. Louis at the date alleged in the indictment,
being at the time on duty from 11 o'clock A. M. to 11
o'clock P. M.; during the preceding four months he
had patrolled the beat where the complainant lived and
they had become acquainted; the latter was a boy
about sixteen years of age, employed during the day at
the Stamping Company, attending night school three
evenings of the week, and on the other evenings accustomed
to play upon the street with other boys. On the
night in question, between 8 and 9 o'clock, the complainant
was upon the street with another boy, when
appellant accosted them and taking each of them by
the arm said: "Come with me or I will arrest you;"
he conducted them into a lumber yard to a low pile of
lumber, where he compelled young Spreen with threats
and menaces to lower his clothes and lie face downward
upon the lumber; then with obscene expressions indicating
his detestable desire, he opened his clothing, in-

[End of page 27]

serted his organ between the boy's thighs and at the
fundament, and attempted the act forbidden by the
statute.
On the part of the appellant there was a great deal
of testimony in favor of his general reputation for general
morality, and some testimony to the effect that the
boys upon his beat were generally bad boys. Testifying
in his own behalf he denied absolutely the story of
the two boys, and stated that he had had trouble with
the complainant on account of the latter’s misbehavior,
and had had to run him off his beat.
No error is assigned in giving or refusing instructions,
but we have carefully read them and they are
carefully and well drawn and covered every legal proposition
involved in the case.

There was no error in refusing to strike out the
evidence of Gilmore. The fact that his name was not
indorsed on the indictment would not have justified the
court in refusing his testimony.

Detestable and abominable as the offense is, and
loth as we are to believe that any man, and much less a
public officer, whose duty it was to maintain the peace
and order of the city, would or could be so brutal in
his instincts, we are unable to say this verdict is without
substantial evidence to support it. We have read
the searching and extensive cross-examination of the
two victims of his unholy assault, and it seems to us
their evidence stood the test, and upon the jury, who
saw them and observed their demeanor on the witness
stand and heard them testify, the law casts the duty of
weighing their testimony. We can not properly interfere
with their finding in this case, and the judgment is
accordingly affirmed. SHERWOOD and BURGESS, JJ.,
concur.


=Link to the PDF of the Original Case Reports=

[http://books.google.com/books?id=kMEaAAAAYAAJ&pg=PA25#v=onepage&q&f=false''The State v. Smith, 137 Mo. 25(1897)]

[http://books.google.com/books?id=AQw8AAAAIAAJ&dq=editions%3ALCCN75643936&pg=PA717#v=onepage&q&f=false''The State v. Smith, 38 S.W. 717 (1897)]

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


*[[Media:Smith_Case_File_1.pdf |State v. Smith, Case File, part 1]]

*[[Media:Smith_Case_File_2.pdf |State v. Smith, Case File, part 2]]

*[[Media:Smith_Case_File_3.pdf |State v. Smith, Case File, part 3]]

*[[Media:Smith_Case_File_4.pdf |State v. Smith, Case File, part 4]]

*[[Media:Smith_Case_File_5.pdf |State v. Smith, Case File, part 5]]

*[[Media:Smith_Case_File_6.pdf |State v. Smith, Case File, part 6]]


''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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