George v. State

• Citation: 61 Neb. 669,85 N.W. 840
• Parties: GEORGE v. STATE.
• Decision Date: 10 April 1901
• Court: Supreme Court of Nebraska

61 Neb. 669

85 N.W. 840

GEORGE

v.STATE.

Supreme Court of Nebraska.

April 10, 1901.

Syllabus by the Court.

1. In an information under the second division of section 12 of the Criminal Code, charging a person with carnally knowing a female child under the age of 18 years, with her consent, it is not necessary to allege that such female child is other than the “daughter or sister” of the one committing the assault.

2. Nor is it necessary to allege that the offense was committed “with the consent” of such female child.

3. As a general rule, the re-examination 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 seems to rest entirely in the discretion of the presiding judge. Schlencker v. State, 1 N. W. 857, 9 Neb. 241, followed.

4. Admission of testimony of mother and sister as to age of prosecutrix held without error.

5. The state may show, in a prosecution for rape, the subsequent acts of the defendant, soon after the alleged commission of the crime, in leaving the locality apparently for the purpose of escaping arrest and prosecution.

6. Instructions quoted, in view of the evidence on behalf of the defendant, held proper.

7. Evidence examined, and found sufficient to support the verdict of the jury and the judgment of the trial court.

Error to district court, York county; Good, Judge.

Jesse George was convicted of crime, and brings error. Affirmed.

George B. France, for plaintiff in error.

The Attorney General, for the State.

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 18 years and upwards shall carnally know or abuse any female child under the age of 18 years, with her consent, unless such female child so known and abused is over 15 years of age and previously unchaste, he 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, did feloniously 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 18 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 (Ohio) 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 (Cal.) 11 Pac. 762;Hays v. People, 1 Hill, 351;Com. v. Roosnell (Mass.) 8 N. E. 747;People v. McDonald, 9 Mich. 150;Mayo v. State, 7 Tex. App. 342;State v. Johnson, 67 N. C. 55;Territory v. Keyes (Dak.) 38 N. W. 440;People v. Courier (Mich.) 44 N. W. 571; Stephens v. State, 11 Ga. 226; 1 Whart. Cr. Law, 577; State v. Grossheim (Iowa) 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...