he lie on top of you? A. About three minutes. Q. About three minutes? A. Yes, sir. Q. And then what did he do? A. Then he got up. Q. And what did he do then? A. He didn't do nothing. Q. Were his private parts exposed when he got up? A. Yes, sir. Q. Tell us what he did after he got up. What did he do? Explain to us. A. He didn't do nothing. Q. Well, were his clothes unbuttoned at the time he got up? A. Yes, sir. Q. Well, did he button them up, or what did he do? A. He buttoned them up." The prosecuting witness, upon being recalled on behalf of the defendant, testified as follows: "Q. At the time that you charged that you were on the bed with the defendant here, did you feel his privates against your body? A. No, sir. Q. At any time during that time did you find any dampness or wetness upon your legs? A. No, sir. Q. At the time when you were on the bed did you take down your drawers-unbutton your drawers? A. I told you that this morning. Q. That is what I believe you said that you did. Did you go right home after that? A. Yes, sir." There was evidence tending to show that the prosecuting witness was examined by a physician subsequently to this transaction, that she was unusually small for her age, and that there was no evidence of penetration. The evidence further tended to show that this defendant had met these two girls about a week before in this same room, at which time he took improper liberties of some kind with the Hennessey girl. Just how far he went it is hard to tell from the record. Whatever he did was done in the presence of the prosecuting witness, but he did nothing to her at that time. Defendant denies having had intercourse with either girl at either time, but admits that he did some "fooling" with the Hennessey girl.

was lying in the bed. The defendant crawled over to the prosecuting witness, put his hand on her arm, and then was seen to lie close to her, with his face close to her face. He then rose up and looked around the room, and then began to unfasten his pants. The older sister hallooed, and the defendant crawled towards the door and left. Upon this state of facts, the court said that, to sustain an indictment for an assault to commit a rape, it was not necessary that any violence should have been used; that "if the intent, with the present means of carrying it into effect, exists, and prepartions therefor have been made, the assault is complete," citing several cases. The court further says: "It was the evident intention of defendant to have connection with the girl without her consent, and whether it was to be by actual physical force, or during the unconsciousness of sleep, is wholly immaterial."

This proposition of law contains two essential elements of fact: There must be an intent to commit the offense, and the means must be present to carry this intent into effect. The intent, however, can only be discovered by the facts and circumstances in the case, and, when the actions of a person indicate that he is animated by a certain intent, it is fair to presume that such intent exists. Therefore, if the defendant placed this girl upon the bed, exposing her person, got on top of her, exposing his person, nothing further appearing, the offense would be complete, because the law would presume that he intended to commit the act. But if all the acts of the defendant, and the circumstances surrounding, reasonably show the absence of the intent, then an essential element of the crime is wanting. In the Dalton Case, above referred to, the facts were quite similar to those under discussion. Speaking of them, the court says: "If these acts were done by defendant without the intention of having carnal knowledge of the girl, while asleep, they only amounted to indecent and lascivious conduct to a child under his care and protection, and whose purity he should have guarded, which, however reprehensible morally, did not constitute rape, or an attempt to commit that crime." In the case at bar the prosecuting witness, although leWe think, under the peculiar circum-gally incapable of consent on account of her stances of this case, that this instruction age, was in fact a willing victim. She made should have been given. The rule adopted no resistance, and contemplated none. by the trial court in instructing in this case defendant had full opportunity to at least is the one approved in State v. Dalton, 106 attempt a penetration. Considering the posiMo. 463, 17 S. W. 700, namely, that prepara- tion he was in, and the want of opposition, tion and acts towards the accomplishment of no reason can be perceived why he should his purpose, with the present means of car- not have carried out his intent if he enterrying it into effect, would constitute an as-tained it. He voluntarily left the girl withsault with intent to ravish. This statement out attempting intercourse. The fact that of the law was taken from State v. Shroyer, he voluntarily left the girl can be explained 104 Mo. 441, 16 S. W. 286, 24 Am. St. Rep. 344. In that case the prosecuting witness, with her brother and sister, was asleep on the floor in a bedroom. An older sister

It is insisted by defendant that the court should have given the following instruction offered by him: "The court instructs the jury that, if the acts as testified to by the witness were done by the defendant without the intention of having carnal knowledge of her, the prosecuting witness, then they only amounted to indecent and lascivious conduct, and, however reprehensible morally, did not constitute an assault to commit a rape."

The

according to the ordinary laws of human conduct upon one of two grounds: Either he had no criminal intent, or he lacked the means of carrying it into effect. The prosecuting

witness testifies that the private of defendant, although exposed, did not touch her person. It is clear, therefore, that no attempt was made by him to consummate the act. It does not follow, because the defendant was guilty of abominable and lecherous conduct, violating one of the most sacred obligations resting upon men-that is, to protect the purity of young girls-that he was guilty of an attempt to rape. Too much cannot be said in reprobation of a man who would deliberately aid a young girl on the downward path, even though she showed herself quite willing to pursue it; but it is our duty to see that a man accused of crime be accorded all the rights which the law allows him, no matter how heinous the charge upon which he is tried.

We think the jury should have been allowed to say whether or not the defendant had the intent to ravish that girl, and that therefore the court erred in refusing the instruction offered by defendant.

For this error the judgment is reversed, and the cause remanded for new trial.

KENNISH and BROWN, JJ., concur.

STATE v. BATES.

BLAIR, C. Having been convicted in the circuit court of the city of St. Louis of murder in the second degree and sentenced to the penitentiary for a term of 10 years, defendant has appealed.

Defendant and deceased, Joseph Driskell, were entire strangers, and the killing occurred upon a crowded street car, upon which both were passengers. Deceased was standing upon the rear platform of the car when defendant boarded it and took his position at the door and in front of deceased, who was in front of, and leaning against, the first of two rails running across the platform dividing it into three sections. The defendant and deceased were very near each other, and the sudden jerking of the car as it started up caused defendant to "brush" or "bump" against deceased, and out of this trivial incident grew the tragedy.

The evidence offered by the prosecution was fully sufficient to support the verdict returned, though the state's witnesses did not agree in some important particulars. The testimony of the witness who seems to have occupied the best position to see what happened, and hear what was said, was to the effect that defendant was holding to the handle on the car door and (doubtless after the motion of the car had thrown the two against each other) said to deceased: "Why

(Supreme Court of Missouri, Division No. 2. don't you go inside?" Deceased replied: "I

Feb. 6, 1912.)

1. HOMICIDE (§ 309*)-TRIAL-INSTRUCTIONS. Where accused testified that, while he and deceased were riding on a street car, deceased called him vile names, assaulted him, knocked him down, and was choking him, when he drew his knife and killed deceased, a charge upon manslaughter in the fourth degree should be given.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 649-656; Dec. Dig. § 309.*] 2. HOMICIDE (§ 309*)-TRIAL-INSTRUCTIONS. Where it appeared that deceased attacked accused while on a street car, called him vile names, and was choking him when accused stabbed him, a charge on manslaughter should have been given, although accused testified that deceased was killing him, and that he was dying, for the fact that self-defense was also sought to be shown does not render unnecessary an instruction on manslaughter.

don't have to go inside. I have been standing here all this while. You get inside." Deceased then added: "Don't lean or rub against me." Defendant then started to turn facing deceased, and, opening his knife, said to him: "Don't talk that way to me." As defendant turned Driskell "grabbed at him," the two men clinched, and defendant went down backward into the car, deceased on top of him. A bystander seized defendant's right arm, and the witness lifted deceased to his feet. Other witnesses gave somewhat different versions of the affair, one declaring that defendant stabbed deceased as he turned facing him, and that deceased was not down at any time. Another, that he, the witness, seized defendant from behind, and threw him backward to the car floor, and that deceased was bending over the defendant as the latIt appeared that two of deceased's companions took defendant's knife from him, one holding his right arm and the other placing his foot upon his neck and face and jerking the knife out of his hand, thereby cutting defendant's fingers slightly. Deceased died from the effects of a knife wound which pierced the left ventricle of the heart. Another slight wound was found upon the head back of the left ear. Despite his wounds, the testimony is that deceased stood in his former position, leaning against the rail, while the car ran two blocks, and then, with some assistance, walk

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 649-656; Dec. Dig. § 309.*] 3. HOMICIDE (§ 309*)-MURDER-REQUISITES. ter lay upon his back. Malice is an essential of murder, and, where there was evidence tending to show provocation of accused, an instruction on manslaughter should be given.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 649-656; Dec. Dig. § 309.*] Appeal from St. Louis Circuit Court; Geo. C. Hitchcock, Judge.

Julius Bates was convicted of murder, and appeals. Reversed and remanded.

Chas. P. Johnson, Jos. G. Williams, and I. A. Rollins, for appellant. Elliott W. Major, Atty. Gen., and Chas. G. Revelle, Asst. Atty. Gen., for the State.

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes

ed from the car to the sidewalk, where he the duty of the trial court to submit that sat down and died.

in Stevenson v. United States, 162 U. S., loc. | necessary, and not an act of self-defense. cit. 320, 16 Sup. Ct. 841, 40 L. Ed. 980, said: But why should the other issue be taken "The jury should have been permitted to from the jury, and they not be permitted to determine the credibility of the evidence, as pass upon it as upon a question of fact?" above detailed, and, if true, whether the In that case the judgment was reversed soleeffect of the conduct of the deceased in ly by reason of the trial court's failure to give shooting, as he did, into the saloon, and the requested instruction on manslaughter. considering all the circumstances of the In some cases cited in the briefs (State v. case, was such as naturally tended to and McCollum, 119 Mo., loc. cit. 475, 476, 24 S. did excite in the mind of the plaintiff in er- W. 1021; State v. Dunn, 80 Mo., loc. cit. ror a sudden passion, either of rage or fear, 693; State v. Ramsey, 82 Mo., loc. cit. 138; and under the influence of which he fired the State v. Lewis, 118 Mo., loc. cit. 83, 23 S. shot and killed the deceased willfully and W. 1082; State v. Meadows, 156 Mo., loc. unlawfully, but at the same time without cit. 116, 56 S. W. 878; State v. Gartrell, malice. If he thus fired the pistol, would 171 Mo., loc. cit. 522, 71 S. W. 1045) it was not a jury have the right to say that the held that there was no evidence of provocaconsequent killing was manslaughter, instead tion sufficient to engender passion reducing of murder? Is it not clearly a question of the degree of the crime to manslaughter, fact for a jury to determine just what the but in no case has it been so held in which mental condition of plaintiff in error was in the evidence resembled that in the case at regard to malice? * * * The ruling of bar. In the case of State v. Gartrell, supra, the trial judge [refusing to instruct on man- something was said concerning defendant's slaughter] in effect was to say that as a mat- failure to indicate in his testimony that he ter of law there was nothing in all this evi- was laboring under heat of passion. The dence, if true, which would permit the jury court clearly did not intend this remark to to find that the plaintiff in error when he be given great importance since it held fired his rifle was so much under the in- that the evidence justified an instruction for fluence of sudden passion, caused by these murder in the second degree, and since the circumstances and by this assault upon him, character of the heat of passion necessary to as not to have been actuated by that malice reduce the grade of such a crime from murwhich the law defines as a necessary ingre- der in the first to murder in the secdient in the crime of murder. Is it perfectly ond degree is like that necessary to reduce plain and clear as a conclusion of law that it to manslaughter, the difference lying in shooting at another under circumstances such the character of the provocation which enas were detailed * in this case can genders the passion and not in the passion have no tendency to raise within the mind engendered. Further, the facts in the Garof the person thus assaulted such a sudden trell Case are wholly different in character passion of anger or terror as to deprive his from the facts in this. It may be added subsequent act of that malice which is nec- that we do not intend to be understood as essary to make it murder? If it is not to intimating that the instruction on self-defense be so asserted as a matter of law, then it could have been omitted by the court. becomes a question of fact in such case, and that question must be answered by the jury. Whether the witnesses told the truth in regard to such circumstances is not for the court to say, nor is it for the court to decide upon the weight to be given to them if proper for the consideration of the jury." In that case the same argument was made as in this, that the evidence was pertinent solely to the defense of self-defense, and "raised no issue as to the grade of the crime if the theory of self-defense were not sustained." Responding to this, the court said: "We do not see the force of the objection. The fact that the evidence might raise an issue as to whether any crime at all was committed is not in the least inconsistent (Supreme Court of Missouri, Division No. 2.

with a claim that it also raised an issue as to whether or not the plaintiff in error was guilty of manslaughter instead of murder. The jury might reject the theory of self-defense as they might say the shot from the pistol of the deceased had already been fired and the plaintiff in error had not been harmed, and therefore firing back was un

2. In view of the result indicated in the preceding paragraph, it is obviously unnecessary to consider the question whether a new trial should have been granted on the ground of newly discovered evidence.

For the reasons given, the judgment is reversed and the cause remanded.

ROY, C., concurs.

PER CURIAM. The foregoing opinion of
BLAIR, C., is adopted as the opinion of the
court.
All the judges concur.

MCCORMICK v. MILLER.

Feb. 6, 1912.)

1. WATERS AND WATER COURSES (§ 93*)— RIPARIAN OWNERS-ACCRETION.

A riparian owner on the side of a river is entitled to all additions to his land along the river by accretion.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. 88 96-103; Dec. Dig. § 93.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

A running stream forming the boundary line between contiguous lands continues to be such boundary line, although the channel may change, provided the change is by gradual erosion of its banks, and not by a sudden change leaving the old channel, and forming an entirely new or different one.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 96-103, 105; Dec. Dig. §§ 93, 94.*]

3. WATERS AND WATER COURSES (§ 93*)-RIPARIAN PROPRIETORS-"ACCRETION.'

2. WATERS AND WATER COURSES (§§ 93, 94*) | ly direction, but near where it reached ap-STREAMS-SHIFTING CHANNEL. pellant's land it made a bend and changed to an easterly course, bearing a little to the north. Appellant's land was underlaid by a stratum of sand, at a depth of about eight or ten feet, and in times of high water the river along the bend at appellant's land washed away the substratum of sand under its south bank, and caused the land to cave in and be washed away. flood would cause the river to encroach upon Sometimes one appellant's land for a distance of from 20 to 70 feet. The channel moved to the south, keeping pace with the washing away of the southern bank, and, as the channel moved south, land was formed on the other side of the river on the southern boundary of respondent's land. The 15-acre tract in controvery is land which at the commencement of the suit lay on the north side of the river. In 1891 the site of the land now in dispute was within the boundary lines of the land then purchased by appellant, but in the 17 years intervening the land so purchased had been washed away and the land now on the

In determining whether a riparian proprietor has title to land in controversy by accretion, the length of time in which it is in course of formation is not important; for, if it is formed by gradual, imperceptible deposit of alluvion, it is accretion, but, if the stream changes its course suddenly and in such manner as not to destroy the integrity of the land in controversy and so that the land can be identified, it is not accretion, and the boundary line remains as before the change of the channel.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 96-103; Dec. Dig. § 93.*

For other definitions, see Words and Phrases, vol. 1, pp. 99, 100.]

Appeal from Louisiana Court of Common north side of the river had reformed as bePleas; David H. Eby, Judge.

Ejectment by George McCormick against Adam E. Miller. Judgment for defendant, and plaintiff appeals. Affirmed.

Pearson & Pearson, for appellant. A. May, for respondent.

Robt.

KENNISH, J. This is an appeal from a judgment of the Louisiana court of common pleas of Pike county in an ejectment suit. The plaintiff sued for the possession of about 15 acres of land in said county. The answer was a general denial. The case was tried at the May term, 1908, and at the close of plaintiff's case the court gave an instruction in the nature of a demurrer to the evidence. There was a verdict and judgment accordingly, and plaintiff appealed.

fore described. A number of witnesses testified in behalf of plaintiff, including plaintiff himself, and their testimony was, without exception, to the effect that the river had undermined and cut away land on the south side and formed land on the north side as heretofore described. Appellant introduced his deed in evidence, and relied upon his title thereby acquired. No question of title by prescription is presented by the testimony.

[1] The respondent, as riparian owner on the north side of the river, was entitled to all additions to his land along the river by the process of accretion. Benson v. Morrow, 61 Mo. 345; Rees v. McDaniel, 115 Mo. 145, 21 S. W. 913; Hahn v. Dawson, 134 Mo. 581, 36 S. W. 233; 1 Farnham on Water and Water Rights, § 69.

[2] A running stream, forming the bound

to be such boundary line, although the channel may change, provided the change is by the gradual erosion and cutting away of its banks, and not by a sudden change leaving the old channel and forming an entirely new and different channel. Cooley v. Golden, 117 Mo. 33, 23 S. W. 100, 21 L. R. A. 300; Frank v. Goddin, 193 Mo. 390, 91 S. W. 1057, 112 Am. St. Rep. 493; Jefferis v. East Omaha Land Co., 134 U. S. 178, 10 Sup. Ct. 518, 33 L. Ed. 872; 3 Farnham on Water and Water Rights, § 847.

It appears from the uncontradicted testimony that in the year 1891 appellant pur-ary line between contiguous lands, continues chased "all of that part of the N. 1⁄2 of section 25, township 55, of range 3 W., except what is known as 'Sugar Creek Island,' containing 160 acres, more or less, which lies south of Salt river," in Pike county, this state. He immediately went into possession of said land, and has occupied and cultivated it ever since. At the date of said purchase Salt river in part formed the northern boundary of said land. The land now owned by respondent, but then owned by his grantor lay directly opposite and across the river, the river being the southern boundary thereof, except that in its northeasterly course the river crossed the north line of said section 25, leaving the section line, for a short distance east from that point, as the boundary line between the two tracts of land. The general course of the river was in a southerFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes

[3] In determining whether a riparian owner has title to land in controversy by accretion, the length of time in which it is in course of formation is not of importance. If it is formed by a gradual, imperceptible deposit of alluvion, it is accretion, but, if the stream changes its course suddenly and in