McEwing v. State

• Decision Date: 04 April 1916
• Citation: 185 S.W. 688
• Parties: McEWING v. STATE.
• Court: Tennessee Supreme Court

185 S.W. 688

McEWING v. STATE.

Supreme Court of Tennessee.

April 4, 1916.

Error to Criminal Court, Davidson County; A. B. Neil, Judge.

Jesse McEwing was convicted of an attempt to carnally know a female under the age of consent, and he brings error. Affirmed.

Jas. P. Atkinson, of Nashville, for plaintiff in error. W. H. Swiggart, Jr., Asst. Atty. Gen., for the State.

NEIL, C. J.

The plaintiff in error was arraigned and convicted under the following indictment (omitting the formal parts):

"That Jesse McEwing * * * on the 18th day of April 1915, * * * unlawfully and feloniously did attempt to commit the crime and felony of unlawfully, feloniously, and carnally knowing a female over the age of twelve years, and under the age of twenty-one years, in this: That the said Jesse McEwing * * * on the 18th day of April, 1915, in the county aforesaid, unlawfully and feloniously did make an assault upon the body of one Bertha Black, she, the said Bertha Black, being then and there over the age of twelve years and under the age of twenty-one years; by then and there seizing the said Bertha Black and putting his hand upon the private person of the said Bertha Black, and did then and there expose and exhibit to the said Bertha Black the penis of him, the said Jesse McEwing, and endeavor to persuade her, the said Bertha Black, to touch and take into her hand his penis; and did then and there by offer of money, and by words, and by excitation of the sexual passion of the said Bertha Black, endeavor to persuade and induce her to let him, the said Jesse McEwing, then and there have unlawful carnal knowledge of her, the said Bertha Black."

The "Age of Consent Law" reads:

"Any person who shall unlawfully or carnally know a female over the age of twelve and under the age of twenty-one years, shall be guilty of a felony, in all cases not falling under the statutes relating to rape, and on conviction shall be confined in the penitentiary not less than three nor more than ten years: Provided, that no conviction shall be had for said offense, on the unsupported testimony of the female in question; and provided, that the provisions of this act relative to females over twelve years shall not apply in cases in which the defendant and female in question occupy the relation of husband and wife at the time of such carnal knowledge; provided, further, that evidence of the female's reputation for want of chastity at and before the time of the commission of the alleged offense shall be admissible in behalf of the defendant, but this proviso shall not apply when the female is over fourteen years of age; provided, further, that nothing in this act shall authorize or warrant a conviction when the female over twelve years of age is, at the time and before the carnal knowledge a bawd, lewd, or kept female." Act of 1893, c. 129, § 1, as amended by Acts of 1901, c. 19, and Acts of 1911, c. 36.

Our statute on the subject of attempts reads:

"If any person assault another with intent to commit, or otherwise attempt to commit, any felony or crime punishable by imprisonment in the penitentiary, where the punishment is not otherwise prescribed, he shall, on conviction, be punished by imprisonment in the penitentiary not exceeding five years, or by imprisonment in the county jail not more than one year and by fine not exceeding five hundred dollars at the discretion of the jury." Shannon's Code, § 6471.

There was a motion to quash the indictment, which was overruled in the trial court, and error is assigned here on this point. The question thus arising is whether the indictment states a crime under the section of the Code just quoted. We are of the opinion that it does. The weight of authority, in respect of crimes of the character now before us, is that mere solicitation is not sufficient. State v. Butler, 8 Wash. 194, 35 Pac. 1093, 25 L. R. A. 434, 40 Am. St. Rep. 900; Smith v. Commonwealth, 54 Pa. 209, 93 Am. Dec. 686; Cox v. People, 82 Ill. 191; State v. Goodrich, 84 Wis. 359, 54 N. W. 577; State v. Harney, 101 Mo. 470, 14 S. W. 657; Hicks v. Commonwealth, 86 Va. 223, 9 S. E. 1024, 19 Am. St. Rep. 891. But a different view seems to be taken in State v. Avery, 7 Conn. 266, 18 Am. Dec. 105. The majority of the cases agree that there must be some overt act, evidencing, not only a purpose to commit the crime, but indicating the beginning of its execution. There is some difference of opinion as to what acts indicate the commencement of the perpetration of the crime, as distinguished from mere acts of preparation for its commission. As to such a matter it is clear that every case must be considered on its own facts. 8 Ruling Case Law, p. 278.

In the case before us we think the facts recited in the indictment show such beginning. They indicate a course of conduct tending directly towards the commission of the crime of having unlawful carnal knowledge of the female, and which would have so resulted but for her failure to respond to the plaintiff in error's acts, her refusal to accede to his request, and her repulse of him.

The substance of the crime legislated against in the Acts of 1893, 1901, and 1911, is the having unlawful carnal knowledge of a female between stated ages. It is assumed that such act is with the actual consent of the female, but the law deprives her of the power of giving, so to speak, a lawful consent; that is, a consent effective to exonerate the defendant from legal wrong. If such attempt should be made without regard to the actual will or wishes of the female, the assault with intent to have unlawful carnal knowledge would be an assault with intent to commit rape, and so would fall under a section of the Code other than section 6471, which we have quoted; that is, under section 6459. So an assault, or any other form of attempt to have unlawful carnal knowledge of a female under the age of lawful consent, as stated, assumes an effort to obtain her lawless consent, as well as some overt act indicating a present purpose to have such unlawful carnal knowledge. The facts recited in the indictment bring the case within this description.

"An attempt in criminal law," said the Supreme Court of Virginia, in Glover v. Commonwealth, "is an apparent unfinished crime, and hence is compounded of two elements, viz.: (1) The intent to commit a crime; (2) a direct act done towards its commission, but falling short of the execution of the ultimate design. It need not, therefore, be the last proximate act to the...