Bonner v. State
| Decision Date | 12 March 1888 |
| Citation | 3 So. 663,65 Miss. 293 |
| Court | Mississippi Supreme Court |
| Parties | JOHN BONNER v. THE STATE |
APPEAL from the Circuit Court of Perry County, HON. S. H. TERRAL Judge.
The case is stated in the opinion of the Court.
Judgment reversed and cause remanded.
Calhoon & Green and E. A. Hamblen, for the appellant.
Granting the indictment to be good, then very clearly it is good only under Code, Section 2713, construed together with the latter clause--not the first clause--of Code, Section 2942.
In other words, under this indictment the age of the female cuts no figure. She must be presumed to be over ten years old whatever the proof is, because she is not averred to be under that age below which consent is immaterial; but the offence is charged to be against her will. But there is no proof that the attempt was against her will.
T. M Miller, Attorney-General, for the State.
It is here insisted that the testimony was insufficient; this would seem to be without merit.
It is also insisted here for the first time that the indictment was insufficient; but I submit that the court would not consider such objections as are made. The indictment substantially complies with the section of the Code under which it is drawn.
Appellant was indicted and convicted of an attempt to commit rape. The indictment charges that he did "attempt to, feloniously, violently, forcibly and against her will, ravish and carnally know one Eveline Cook, female, and in such attempt did then and there do a certain overt act towards the commission of such offence," etc. The proof shows that the female upon whom the attempt was made was a child under four years of age. It is not shown that the act was done without her consent and against her will. There was a motion for a new trial, assigning, among other causes, that the verdict was contrary to the evidence, and that the evidence was not sufficient to warrant a verdict of guilty, which was overruled.
Sec. 2942 of the Code is in these words: "Every person who shall be convicted of rape, either by carnally and unlawfully knowing a female child under the age of ten years, or by forcibly ravishing any female of the age of ten years and upwards, shall suffer death; unless the jury shall fix the penalty at imprisonment for life, as it may do in case of murder." The two offences denounced by this statute are of kindred nature, and are punished in the same manner; but they are not identical, and the indictment and proof that would be sufficient for the one, or for an attempt to commit the one, would not be so for the other. The statute does not define fully and clearly the elements of either offence, and an indictment for either, or for an attempt to commit either, should charge the full measure of the offence by the use of such words as are necessary and proper, under established rules of law, to characterize it. Hays v. The State, 57 Miss. 783. Both offences are designated by the statute as rape; but it is manifest that by one is meant rape in its usual acceptation of being the carnal knowledge of a female forcibly and against her will, while the other is a rape which consists of unlawfully having carnal knowledge of a child, without reference to whether it is forcible and against her will or not.
Under the first clause of the statute, it is an offence for any person to unlawfully have carnal knowledge of a female child under the age of ten years, whether she consents or not; it being assumed by the statute that a child of that age is incompetent to give consent to such an act. An allegation in the indictment that the child was under the age of ten years would be necessary in an indictment under this clause of the statute, and it would be unnecessary to charge or prove that the act was done forcibly and against her...
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State v. Baker
...an assault with intent to have carnal knowledge of a child under the age of consent. State v. Wheat, 63 Vt. 673, 22 A. 720; Bonner v. State, 65 Miss. 293, 3 So. 663; Warner v. State, 54 Ark. 660, 17 S.W. 6; State v. Johnson, 100 N.C. 494, 6 S.E. 61; Vasser v. State, 55 Ala. 264; 75 C.J.S., ......
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...may transpire at the trial." 1 Bishop on Criminal Procedure, sec. 446; State v. Porter, supra; State v. Sutton, 4 Gill 494; Bonner v. State, 65 Miss. 293, 3 So. 663. Whether the state should be required to elect upon which count in an indictment it will proceed to trial is regulated in all ......
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Wilson v. State
...a female over the age of twelve years, but leaves the definition of rape to be ascertained by the common law definition. Bonner v. State, 65 Miss. 293, 3 So. 663 (1888); Hays v. State, supra. Rape at common law is the unlawful carnal knowledge of a woman over the age of ten years forcibly a......
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State v. Winger, 31803.
...to: Vasser v. State, 55 Ala. 264;Warner v. State, 54 Ark. 660, 17 S.W. 6;Greer v. State, 50 Ind. 267, 19 Am.Rep. 709;Bonner v. State, 65 Miss. 293, 3 So. 663;State v. Johnson, 100 N.C. 494, 6 S.E. 61;State v. Wheat, 63 Vt. 673, 22 A. 720. In the first indictment there was no allegation as t......