The State v. Burries, alias Dusty, Appellant.
Division Two,
February 12, 1895.
1. Pleading, Criminal: rape: indictment. An indictment for rape which charges that the defendant “in and upon one Bertha Potter, a female child under the age of fourteen years, to wit, of the age of seven years, unlawfully and feloniously did make an assault, and her the said Bertha Potter then and there unlawfully and feloniously did carnally know and abuse,” etc., is sufficient under Revised Statutes, 1889, section 3480, declaring it rape for any person to carnally and unlawfully know any female child under the age of fourteen years.
2. Appellate Practice: failure to pile bill of exceptions. Where no hill of exceptions is filed in the appellate court, only the record proper can he examined, and, no errors appearing therein, the judgment will he affirmed.
3. -: capital offense: execution of sentence. The supreme court will, upon affirmance of the judgment upon appeal in a capital case, direct that the sentence pronounced he executed. R. S. 1889, sec. 4298.
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Appeal from Buchanan Criminal Court. — Hon. Silas Woodson, Judge.
Affirmed.
B. F. WalJcer, Attorney General, and Morton Jourdan, Assistant Attorney General, for- the state.
The appeal in this case must be determined upon the record proper. Nothing more is brought here or preserved. Appellant filed no bill of exceptions, hence there are none saved. There is no error in the record. The indictment carefully follows the language of the statute creating the offense, . and under which it is drawn. R. S. 1889, sec. 3480. The approved form is employed, and all material allegations are set forth. State v. Meinhart, 73 Mo. 563; State v. Wray, 109 Mo. 597. The crime of rape is one for which the penalty of death may, in the discretion of the jury, be assessed. Sec. 3480, supra; Fx parte Dusenberry, 97 Mo. 504.
Sherwood, J.
— The defendant, whose true name it now appears, was Joseph Burries, was indicted under the provisions of section 3480, Revised Statutes, 1889, for the crime of rape, and upon conviction was sentenced to be hanged, and appeals to this court.
The indictment, omitting caption, is the following: “The grand jurors for the state of Missouri, within and for the body of the county of Buchanan aforesaid, being duly impaneled and sworn, upon their oaths do present that Joseph Dusty, whose true name is unknown, on the thirtieth day of July, 1894, in the county of Buchanan and state aforesaid, in and upon one Bertha Potter, a female child under the age of fourteen years, to wit, of the age of seven years, unlawfully and feloniously did make an assault, and her the said Bertha *567Potter then and there unlawfully and feloniously did carnally know and abuse, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”
Under the provisions of the cited section, the crime in question may be committed “either by .carnally and unlawfully knowing any female child under the age of fourteen years, or by forcibly ravishing any woman of the age of fourteen years or upwards,” and the extreme penalty for the crime is death.
As the defendant has failed to file a bill of exceptions, we can only examine the record proper. The indictment is sufficient as well as the other proceedings of record, and as those matters are the only ones before us for examination, we affirm the judgment and direct the sentence pronounced to be executed. Revised Statutes, 1889, section 4298; State v. Pagels, 92 Mo. 300, and other cases.
All concur.