George v. State

• Decision Date: 10 April 1901
• Docket Number: 11,919
• Citation: 85 N.W. 840,61 Neb. 669
• Parties: JESSE GEORGE v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

85 N.W. 840

61 Neb. 669

JESSE GEORGE v. STATE OF NEBRASKA

No. 11,919

Supreme Court of Nebraska

April 10, 1901

ERROR from the district court for York county. Tried below before GOOD, J. Affirmed.

AFFIRMED.

George B. France, for plaintiff in error.

Frank N. Prout, Attorney General, and Norris Brown, Deputy, contra.

OPINION

HOLCOMB, J.

The defendant was charged with the crime of rape under the second division of section 12 of the Criminal Code, which provides in substance, that if any male person of the age of eighteen years or upwards shall carnally know or abuse any female child under the age of eighteen years, with her consent unless such female child so known and abused is over fifteen years of age, and previously unchaste, shall be deemed guilty of rape. The charging part of the information was that the plaintiff in error, "a male person over the age of eighteen years, on the 30th day of May, A. D. 1900, in the county of York and state of Nebraska, in and upon one Susan Schroeder, a female child under the age of twelve years, then and there being, feloniously did make an assault, and her, the said Susan Schroeder, then and there wickedly, unlawfully and feloniously did carnally know and abuse." A plea of not guilty to this information was entered and a trial had to the court and jury, resulting in a verdict of guilty and sentence of the defendant to imprisonment in the penitentiary.

Several alleged errors are presented in the brief of counsel and urged as grounds for a reversal. It is suggested that motions to quash the information and in arrest of judgment, which were interposed, ought to have been sustained, because it was not alleged that the person upon whom the assault was committed, and of whom carnal knowledge was had, was "other than the daughter or sister of the defendant." It is provided by section 11 that an assault upon the sister or daughter by force and against her will constitutes one offense, and it is also provided by the first division of section 12 that an assault upon any other woman or female child than the daughter or sister, forcibly and against her will, shall constitute the offense of rape; but by the second division of section 12 it is provided that the carnally knowing of any female child under the age of eighteen years, with her consent, except as therein noted, shall constitute the offense, and subject the person guilty thereof to the punishment mentioned. This second division, as we view it, constitutes an offense within itself, and charging the crime substantially in the language of the statute is all that is required; and it is not necessary to negative the requirements of either section 11 or the first division of section 12, providing what shall constitute the offense when committed by force and against the will of the person assaulted.

Regarding the requirements of the Criminal Code as to the allegations in an information charging the commission of the crime of rape by force and against the will of the person assaulted, whether a daughter or sister or other person, we are not here concerned. Under the provisions of the statute authorizing the prosecution of a person charged with having carnal knowledge of a female child under the age of consent, as in the case at bar, it is unnecessary to allege that the person assaulted is other than the daughter or sister of the one committing the act. Jones v. State, 54 Ohio St. 1, 42 N.E. 699.

It is also urged that the information is defective, in that it does not charge that the act was committed with the consent of the prosecutrix. This question must be regarded as set at rest and foreclosed by the case of Davis v. State, 31 Neb. 247, 47 N.W. 854, wherein it is held: "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." Says NORVAL, J., the author of the opinion: "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 fifteen years of age, with intent carnally to know her, whether she formally consent to the assault or not, as well as an assault made upon a female over the age of fifteen 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 fifteen 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, 70 Cal. 467, 11 P. 762; Hays v. People, 1 Hill 351; Commonwealth v. Roosnell, 143 Mass. 32, 8 N.E. 747; People v. McDonald, 9 Mich. 150; Mayo v. State, 7 Tex. Ct. App. 342, State v. Johnston, 76 N.C. 209; Territory v. Keyes, 5 Dak. 244, 38 N.W. 440; People v. Courier, 79 Mich. 366, 44 N.W. 571; Stephen v. State, 11 Ga. 225; 1 Wharton, Criminal Law 577; State v. Grossheim, 79 Iowa 75, 44 N.W. 541.)" Whether or not the prosecutrix consented being immaterial, it follows that it is unnecessary to allege or prove that the act was done with her consent. She is in law regarded as incapable of giving consent to the act. Every element necessary to constitute the crime may be established, irrespective of her consent or want thereof.

Objection is also made because of the admission of certain evidence and because the prosecutrix was recalled and permitted to testify further regarding the same matters brought out in her examination in chief. It is held in Schlencker v. State, 9 Neb. 241, 1 N.W. 857: "As a general rule the reexamination of a witness should be limited to the points arising out of the cross-examination. But whether this rule shall be strictly enforced or not...