Hall v. State

• Decision Date: 02 May 1894
• Citation: 58 N.W. 929,40 Neb. 320
• Parties: HALL v. STATE.
• Court: Nebraska Supreme Court

40 Neb. 320

58 N.W. 929

HALL

v.STATE.

Supreme Court of Nebraska.

May 2, 1894.

Syllabus by the Court.

1. An information for assault with intent to commit rape need not allege either the age of the person upon whom the assault was made or the age of the defendant, where it charges that the act was committed forcibly, and against the will of the prosecutrix.

2. In case it is not averred the act was done with force and against the consent of the prosecutrix, it is essential the information disclose that the person upon whom the offense was committed, at the time of the assault, was under 15 years of age, and that the accused was of the age of 18 years or over.

3. Allegations in an information, which are immaterial and unnecessary, may be treated as surplusage, and be entirely rejected.

4. In a prosecution for an assault with intent to commit rape, under an information which charges an assault by force and against the will of the female by a male under 18 years, it is error to instruct the jury that the defendant is guilty of an assault with intent to commit rape, whether the attempted intercourse was with or without the consent of the prosecutrix, and whether any force was used or not.

Error to district court, Nemaha county; Babcock, Judge.

William Hall was convicted of assault with intent to commit rape, and brings error. Reversed.E. W. Thomas and G. W. Cornell, for plaintiff in error.

Geo. H. Hastings, Atty. Gen., for the State.

NORVAL, C. J.

Plaintiff in error was convicted of the crime of assault with intent to commit a rape upon one Maggie Holthus, a girl under the age of 15 years. The prisoner presented a motion for a new trial, which was overruled. Thereupon he filed a motion in arrest of judgment, on the ground that the facts stated in the information upon which he was tried do not constitute a crime, which was likewise overruled. It is insisted, in the first place, that the trial court erred in refusing to sustain the motion in arrest of judgment. The information under which the conviction was had, omitting the verification, reads as follows: “State of Nebraska, Nemaha County--ss. Of the October term of the district court of Nemaha county, in the year 1893, A. J. Burnham, prosecuting attorney for said county of Nemaha, in the name and by the authority and on behalf of the state of Nebraska, information makes that William Hall, then and there being a male person, and over the age of seventeen years, in the said county, and on the 14th day of September, A. D. 1893, in and upon one Maggie Holthus, a female under the age of fifteen years, did then and there violently, unlawfully, and feloniously beat and ill treat, with intent to injure her, the said Maggie Holthus, forcibly and against her will feloniously to ravish and carnally know; contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Nebraska. [Signed] A. J. Burnham, County Attorney.” The information was framed under the fourteenth section of the Criminal Code, which enacts that: “If any person should 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 nor less than two years.” Section 12 of the same Code declares that: “If any person shall have carnal knowledge of any other woman, or female child, than his daughter or sister, as aforesaid, forcibly and 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 nor less than 3 years.”

It is urged that the information is insufficient, because it fails to charge that the person committing the offense was of the age of 18 years or upwards, but alleges that he was over 17 years old. It will be observed that the section last above quoted enumerates two classes of facts, either of which constitutes a rape. By the first clause of the section it is a rape for a person to unlawfully have carnal knowledge of a woman or female child other than his daughter or sister, forcibly and against her will. By the last clause it is made a rape for a male person of the age of 18 years or upwards to unlawfully have carnal knowledge of a female child under 15 years of age, with her consent. An information for the crime of rape under the second clause of the section must charge the person upon whom...