ON MOTION FOR LEAVE TO FILE MOTION FOR REHEARING. Through new counsel recently employed and who did not participate in the trial below, appellant has filed a motion for leave to file out of time a motion for rehearing, the latter motion being submitted with the former. The opinion in this case, affirming the judgment and sentence of the circuit court and ordering its execution, was filed on June 11. Under Rules 1.19 and 1.27, any motion for rehearing should have been filed within fifteen days thereafter, which would have been on or before June 26. The instant motion, with accompanying motion for rehearing, was not filed until July 5, and therefore comes nine days too late.
[14] But since the death penalty has been assessed we have examined the motion for rehearing nevertheless. The only ground for rehearing assigned therein is that the trial court erred in failing to give an instruction on manslaughter, without request, as a part of the law of the case, under Sec. 4070(4), R.S. 1939 and Mo., R.S.A., and State v. Aitkens, 352 Mo. 746, 762-3,179 S.W.2d 84, 94(26). In that case the defendant admittedly placed her hand over the mouth of an infant, smothering it to death. But she asserted she had committed the assault merely to stifle the cries of the infant and not with the intention of killing it. The decision held the prolonged, fatal suffocation of the infant would not be accidental or excusable *Page 195 homicide even though there was no actual intent to kill; and would, or could, at least constitute an assault and battery with intent to do bodily harm, calling for an instruction on manslaughter since the homicide was committed in the perpetration of that assault.
Appellant's counsel reasons that on the same theory a manslaughter instruction should have been given in this case. But here the appellant killed the deceased in the perpetration of a rape, or an attempted rape according to his own confession, as proven by the State. At the trial the appellant's sole defense was an alibi. He made no issue whatever as to his intent to ravish — if he did commit the assault. And Sec. 4376, R.S. 1939 and Mo., R.S.A. expressly declares a homicide committed in the perpetration or attempted perpetration of any rape shall be deemed murder in the first degree. It is immaterial whether the rapist did or did not intend that his assault upon the seven year old girl should result fatally, if death was a natural and proximate result of the act. The law supplies the essential ingredients of the murder, such as malice, deliberation, premeditation. State v. Glover, 330 Mo. 709, 718-9,50 S.W.2d 1049, 1052-3, 87 A.L.R. 400; State v. King, 342 Mo. 1067, 1072(1), 1075(5), 119 S.W.2d [542] 322, 324(2), 326(8); State v. Mills, 352 Mo. 774, 779, 179 S.W.2d 95, 97(3).
The foregoing being true, it would avail nothing if appellant's motion for rehearing were filed. The motion for leave to file that motion is overruled. *Page 196