Davis v. State

• Decision Date: 20 January 1891
• Citation: 31 Neb. 247,47 N.W. 854
• Parties: DAVIS v. STATE.
• Court: Nebraska Supreme Court

31 Neb. 247

47 N.W. 854

DAVIS

v.STATE.

Supreme Court of Nebraska.

Jan. 20, 1891.

Syllabus by the Court.

1. An assault by a male person of the age of 18 years or upwards with the intent to carnally know a female child under the age of 15 years is punishable in this state as an assault with the intent to commit a rape.

2. In a prosecution for an assault upon the person of a girl under the statutory age of consent with intent to commit a rape, it is not necessary to allege or prove that the acts were done against her will. Whether she consented or resisted is immaterial.

3. An information in a criminal prosecution must be sworn to before a magistrate authorized to administer oaths, and not before a notary public. Defects in the verification of an information not raised until after the verdict are waived.

4. Objections to the mode of selecting petit jurors must be made before the trial, to be of any avail.

5. When the defendant in a criminal case testifies in his own behalf, it is not error to charge the jury that in weighing his testimony they might consider his interest in the result of the trial.

6. A child possessing sufficient capacity to understand the nature and obligations of an oath is a competent witness.

7. Evidence examined, and held insufficient to sustain the verdict.

Error to district court, Greeley county; HARRISON, Judge.

G. C. Wright, H. S. Sprecher, and H. G. Bell, for plaintiff in error.

The Attorney General, for the State.

NORVAL, J.

The plaintiff in error was convicted of an assault with intent to commit a rape upon Pearl Mitchell, a female child under the age of 15 years. A motion for a new trial was overruled. Thereupon the defendant filed a motion in arrest of judgment, which motion the court overruled, and sentenced the defendant to confinement in the penitentiary for the term of two years.

The information contained two counts,--the first for rape, and the second for assault with intent to commit that crime. The county attorney, with the consent of the court, entered a nolle prosequi as to the first count, and placed the defendant upon trial on the second count of the information. This count reads as follows: “And I, M. B. Gearon, duly elected and qualified county attorney in and for Greeley county and state of Nebraska, who prosecutes for and on behalf of said state in the district court of said county of Greeley, and duly empowered by law to inform of offenses committed in said county of Greeley, comes now here, and gives the court to understand and be informed that heretofore, to-wit, on the 1st day of October, in the year of our Lord 1889, said William Davis, in the county of Greeley and state of Nebraska aforesaid, did unlawfully, knowingly, willfully, and feloniously assault said Pearl Mitchell, a female child under the age of fifteen years, then and there with felonious intent to ravish and carnally know the said Pearl Mitchell forcibly and against her will, contrary to the form of the statutes in such cases made and provided, against the peace and dignity of the state of Nebraska.” It is urged by counsel for plaintiff in error that the matter stated in said counts does not constitute a crime under the Criminal Code of this state; in other words, that there is in this state no statute making an assault upon a female child under the age of 15 years, with intent to carnally know her, a criminal offense. Section 12 of the Criminal Code provides that “if any person shall have carnal knowledge of any other woman or female child than his daughter or sister, as aforesaid, forcibly, or against her will, or if any male person of the age of eighteen years or upwards shall carnally know or abuse any female child under the age of fifteen years with her consent, every such person so offending shall be deemed guilty of rape, and shall be imprisoned in the penitentiary not more than 20 years nor less than 3 years.” It is laid down in the books as a general rule that to constitute the crime of rape the unlawful carnal knowledge must be had forcibly and against the will of the woman, that she must oppose the act, and that if she consents to the carnal connection the prosecution must fail. To the rule that the woman must resist the act there are certain well-understood exceptions, such as where she is insane, or where the consent has been obtained by deceit or fraud, or by fear of personal violence. The legislature, by section 12, has made another exception, and that is where unlawful intercourse is had with a female child under 15 years of age with her consent. A child under the age of 15 years is incapable of giving consent to an act of carnal knowledge. Sexual intercourse with a child under the age of consent constitutes a rape, under the laws of this state. This prosecution is brought under section 14 of the Criminal Code, which provides that, “if any person shall assault another with intent to commit a murder, rape, or robbery upon the person so assaulted, every person so offending shall be imprisoned in the penitentiary not more than fifteen years nor less than two years.” Section 12, quoted above, defines the crime of rape; and it was the intention and purpose of the legislature, in adopting section 14, to punish as a crime an assault upon a female child under 15 years of age with intent carnally to know her, whether she formally consented to the assault or not, as well as an assault made upon a female over the age of 15 years, forcibly and against her will, with intent to commit a rape. As it is not necessary, in a prosecution for a rape committed upon a child under the age of consent, to prove that the acts were done against her will, so an assault with intent to commit a rape, made upon a girl under the age of 15 years, is punishable under the statute, although committed with the consent of the child. Whether she consented or resisted the assault is not material. Fizell v. State, 25 Wis. 364;People v. Gordon, (Cal.) 11 Pac. Rep. 762;Hays v. People, 1 Hill, 351; Com. v. Roosnell, (Mass.) 8 N. E. Rep. 747; People v. McDonald, 9 Mich. 150;Mayo v. State, 7 Tex. App. 342;State v. Johnston, 76 N. C. 209;Territory v. Keyes, (Dak.) 38 N. W. Rep. 440;People v. Courier, (Mich.) 44 N. W. Rep. 571; Stephen v. State, 11 Ga. 226; 1 Whart. Crim. Law, § 577; State v. Grossheim, (Iowa,) 44 N. W. Rep. 541. In Com. v. Roosnell, supra, Judge ALLEN says: “If, as all agree, it is immaterial upon a charge of committing the completed act, which includes an assault, no reason but an extremely technical one can be urged why it should not be so upon a charge of assault with intent to commit the completed act. Indeed, to speak of an assault upon her without her consent, with intent to carnally know and abuse her with her consent, seems to involve a contradiction in terms. But when it is once considered that the intention of the law is to declare that a young girl shall be deemed incapable of consenting to such an act to her injury, and that evidence of any consent by her shall be incompetent in defense to an indictment therefor, and that, although she give a formal and apparent consent, yet in law, as in reality, she gives none, because she does not and cannot take in the meaning of what is done, all legal difficulty disappears, and the conclusion may properly be reached that the assault is without her consent, and against her will.” In People v. McDonald, 9 Mich. 150, the court, in considering a question similar to the one at bar, say: “As actual consent of a female child under the age of ten years cannot be shown upon a trial for the crime of rape, because the law will not suffer the presumption of incapacity to consent to be repelled, or even attacked, neither, in case of a charge of assault with intent to commit such crime, can consent be shown to negative such intent, for the law will neither suffer nor consider such evidence. There can be no presumption or evidence of consent in cases in which the law declares there exists an absolute inability to consent. As there...