Hubert v. State
| Decision Date | 22 June 1905 |
| Docket Number | 14,096 |
| Parties | PHILIP HUBERT v. STATE OF NEBRASKA. [*] |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county: EDWARD P. HOLMES JUDGE. Reversed.
REVERSED.
Billingsley & Greene and R. H. Hagelin, for plaintiff in error.
Norris Brown, Attorney General, and W. T. Thompson, contra.
Philip Hubert, who will hereafter be called the plaintiff, was convicted in the district court for Lancaster county of the crime of statutory rape, and from a judgment sentencing him to be confined in the state penitentiary for the period of six years he prosecutes error.
The information on which he was tried, omitting the formal parts, reads as follows: "That Philip Hubert, late of the county aforesaid, on the 4th day of August, A. D. 1904, in the county of Lancaster and state of Nebraska, aforesaid, then and there being, did feloniously and unlawfully in and upon one Lilian Harding, a female child under the age of eighteen years, to wit, the age of fifteen years, and previously of chaste character, then and there being, feloniously did make an assault, and her the said Lilian Harding, then and there wickedly, unlawfully and feloniously did carnally know and abuse." Plaintiff first filed a motion to quash the information; later on demurred to it; thereafter objected to the introduction of any evidence on the part of the state because, as he alleged, the information did not state facts sufficient to constitute a crime; and after conviction, before sentence, he filed a motion in arrest of judgment for the same reason. So it appears that at the outset he objected to the sufficiency of the information, and has at all times kept his objection good. His first contention now is that the information is not sufficient to charge him with the crime of which he was convicted. As counsel for both the plaintiff and the state have given this question the most attention, we will, at the outset, give it our careful consideration.
Section 11 of the criminal code provides: "If any person shall have carnal knowledge of his daughter or sister, forcibly and against her will, every such person so offending shall be deemed guilty of a rape, and shall be imprisoned in the penitentiary during life." The plaintiff was not prosecuted under this section, therefore it will receive no further consideration, and is quoted only for the purpose of being referred to in the discussion which follows. Section 12 of the criminal code reads as follows: "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 eighteen years, with her consent, unless such female child so known and abused is over fifteen years of age and previously unchaste, every such person so offending shall be deemed guilty of a rape, and shall be imprisoned in the penitentiary not more than 20 or less than 3 years." From an examination of the sections quoted it is apparent that they describe three classes of crimes, each of which is totally distinct from the other two. The first clause of section 12 describes what is usually called the common law crime of rape. By this clause it is provided that any male person who shall have carnal knowledge of any woman or female child, other than his daughter or sister, forcibly and against her will, is guilty of the crime of rape. In an information for this offense it is not necessary to state the age of the accused. If he has the capacity to commit the crime his age is wholly immaterial, and so is the age of his victim. But it is always necessary in a prosecution under this clause of the statute to allege and prove that the act was committed forcibly and against the will of the prosecutrix. Garrison v. People, 6 Neb. 274; Hall v. State, 40 Neb. 320, 58 N.W. 929. The crime is made a statutory offense in this state, and the language of the information must conform, substantially at least, to that found in the statute. Judge MAXWELL in his Criminal Procedure, p. 238, says: "Rape is the carnal knowledge of a female forcibly and against her will." This definition applies particularly to the crime defined in the first clause of section 12. It will be observed that it is nowhere charged in the information that the plaintiff had carnal knowledge of the prosecutrix forcibly and against her will. So it is perfectly apparent that the language used therein is not sufficient to charge the plaintiff with the crime defined in the first clause of that section.
The second clause of section 12 provides 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, every person so offending shall be deemed guilty of a rape. Now the essential elements of this charge are: First, that the accused is a male person of the age of eighteen years and upwards; second, that he shall carnally know and abuse a female child under the age of eighteen years; third, that such abuse shall be with her consent. If, however, she is over fifteen and under eighteen years of age, and previously unchaste, then carnal knowledge of her with her consent does not constitute the crime of rape. It is equally clear that, if the accused is less than eighteen years of age, the offense described in this clause of the statute cannot be committed by him. The state, nevertheless, contends that the statute describes but one offense; that the age of the accused is immaterial, and that it is not necessary to charge and prove that he had carnal knowledge of the prosecutrix forcibly and against her will. To support this contention several sections of Bishop's New Criminal Procedure, and cases from other states, are cited. An examination of these authorities discloses that they are based on statutes somewhat different from our own. As a matter of fact the decisions of each state conform to the definition of the crime set forth in its own statutes, and for this reason the authorities relied on by the state are of very...
To continue reading
Request your trial