Hubert v. State
| Decision Date | 22 June 1905 |
| Citation | 104 N.W. 276,74 Neb. 220 |
| Parties | HUBERT v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Sections 11 and 12 of the Criminal Code describe three classes of crimes, each of which is totally distinct from the other two. By section 11 it is declared to be unlawful for any person to have carnal knowledge of his daughter or sister forcibly and against her will. By the first clause of section 12 the act of having forcible carnal knowledge of any woman or female child, other than a daughter or sister, is denounced as a crime; and by the second clause sexual intercourse with a female child under the age of 18 years, without force and with her consent, is forbidden.
An information for the crime of rape under the first clause of section 12, Cr. Code, must charge that the act was done with force and against the will or consent of the prosecutrix.
An information for the crime of rape under the second clause of said section must charge the person upon whom the offense was committed as being a female child under 18 years of age, and the accused as being a male person of the age of 18 years or over; and, in case the prosecutrix is over 15 years of age, her previous chastity must be alleged.
The state, on the trial of such a case, should not be permitted to introduce evidence of acts of the accused, and statements alleged to have been made by him, which do not tend to corroborate the evidence of the prosecutrix, or impeach or discredit his own testimony.
Error to District Court, Lancaster County; Holmes, Judge.
Philip Hubert was convicted of rape, and brings error. Reversed.
Billingsley & Greene and R. H. Hagelin, for plaintiff in error.
Norris Brown, Atty. Gen., and W. T. Thompson, Dep. Atty. Gen., for the State.
Philip Hubert, who will hereafter be called the plaintiff, was convicted in the district court of 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 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 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 twenty years nor less than three 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. 322, 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 section12 provides that if any male person of the age of 18 years or 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...
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