Mckinny v. State

Decision Date19 March 1892
PartiesMcKINNY v. STATE.
CourtFlorida Supreme Court

Error to circuit court, Clay county; W. B. YOUNG, Judge.

Indictment against Oscar McKinny for an assault with intent to commit rape. From a judgment on conviction defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

At common law, a boy under the age of 14 years cannot, in point of law, be guilty of an assault with intent to commit rape and, if he be under that age at the time of the alleged offense, evidence is inadmissible to show that in point of fact he could commit the offense.

COUNSEL R. W. &. W. M. Davis, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

MABRY J.

The plaintiff in error was indicted at the spring term, A. D 1891, of the Clay county circuit court, for an assault upon a female child under the age of 10 years, with intent feloniously and forcibly to carnally know and abuse her, and, after arraignment, was convicted of said offense.

The indictment charges, omitting the formal parts, 'that Oscar McKinny, of the county of Clay, and state of Florida on the 21st day of February, A. D. 1891, in the county and state aforesaid, in and upon one Dora Lillian Remesat, a female child under the age of ten years, to-wit, of the age of eight years, feloniously did make an assault, with intent her, the said Dora Lillian Remesat, then and there feloniously and forcibly to carnally know and abuse, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state of Florida.' After verdict, plaintiff in error, by his counsel, made a motion to set aside the verdict and grant a new trial. The grounds of the motion are: (1) 'Because the verdict is contrary to law;' (2) 'because the verdict is contrary to the evidence;' (3) 'because the verdict is contrary to the charge of the court;' (4) 'because the uncontradicted evidence in the case was that the defendant was not fourteen years of age at the time of the alleged offense, and yet the jury found him guilty of the offense with which he was charged.' This motion was overruled, and defendant excepted. No exceptions were taken to the charge of the court, or the admissibility of any testimony. The assignments of error here cover in substance the same points presented in the motion for new trial. The sole inquiry presented here is the sufficiency of the evidence to sustain the verdict.

The mother of the child testified for the state, in substance, as follows: That the accused was working for her husband, helping in his barber-shop, and working on his place. On the 20th day of February, A. D. 1891, the accused was at work in their garden, and about 5 o'clock in the evening, while witness was up-stairs attending to a fretful baby, she looked out of the window into the garden, and did not see the accused at work. Witness could see from the upper window all over the garden, except down by the side of a fence nearest to the house. She knew that her daughter was in the garden with the accused, and had been playing there. She went down to see about it, and as soon as she opened the garden gate she saw her child lying flat on the ground, with her clothes up, and the accused on top of her. They were lying with their feet towards witness. As soon as the witness entered the gate, the accused jumped up, and commenced to button up his pantaloons, which were unbuttoned. Witness asked the accused what he meant by doing that. He said Lillian made him do it. She had been after him all the week to do it. Witness said if she had a pistol she would kill accused, and that she would have him arrested. She looked for something to hit accused with, and he ran away from the premises. This was in Clay county, Florida. On cross-examination witness stated that when she looked in at the gate she saw them lying on the ground near the fence, and near the chicken-house. The chicken-house was about 10 feet high, and was between the gate where she entered and where they were lying. The chicken-house was joined onto the fence to the right of the gate, and was on her right hand. The accused and the child were on the other side of the chicken-house. The child did not get up when the accused did. She laid on the ground for a little time, and was not fretting or crying, and was not hurt. Witness did not see the private parts of the accused.

J. A. Peeler testified for the state, in substance, that he was sheriff of Clay county. A warrant was placed in his hands for the arrest of Oscar McKinny, for the assault upon the little girl. He tried for two days to find the accused, but could not. He found him on Sunday night at his mother's house, and arrested him.

For the defense, Georgia Cook testified that she was the mother of the accused, Oscar McKinny, and that he was not 14 years of age; that he would be 14 years of age on the following Tuesday,--the last day of March.

Fonce Miller testified that he knew the general reputation of the accused, and that it was good. He never heard anything bad of the boy.

The defendant's statement, under oath, was, in substance, that he had the headache, and was lying down on the ground. Lillian came where he was, and was playing on him, and he pushed her off. He was not trying to do anything to her. He ran off, because Mrs. Remesat said she was going to have him arrested.

This was, in substance, all of the testimony. Our statute provides that 'whoever ravishes and carnally knows a female of the age of ten years or more, by force and against her will, or unlawfully or carnally knows and abuses a female child under the age of ten years, shall be punished by death, or by imprisonment in the state penitentiary for life;' and whoever assaults a female with intent to commit a rape shall be punished by imprisonment in the state penitentiary for any term of years or for life, or by fine not exceeding one thousand dollars. Chapter 1637, subc. 3, §§ 40, 41, Act 1868, (McClel. Dig. p. 355, §§ 36, 37.) The two clauses contained in the first section of the above statute define the single offense of rape. It is committed on a female over 10 years of age by having carnal knowledge of her by force and against her will, and on a female under 10 years of age by unlawfully or carnally knowing and abusing her, without regard to consent. The object of our statute was to provide a punishment for rape in all cases of the violation of females of any age. Originally at common law rape was defined to be the carnal knowledge of a female, forcibly and against her will. 3 Chit. Crim. Law, 810; 1 Russ. Crimes, 904.

It seems that it was anciently doubted whether rape could be committed upon a child under 10 years of age, and hence the statute, 18 Eliz. c 7, § 4, was enacted, by which it was provided 'that, if any person shall unlawfully and...

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23 cases
  • State v. Carnagy
    • United States
    • United States State Supreme Court of Iowa
    • October 20, 1898
    ...... v. Gordon, 70 Cal. 467 (11 P. 762); Hays v. People, 1 Hill 351; Territory v. Keyes, 5 Dak. 244 (38 N.W. 440); Davis v. State, 31 Neb. 247 (47. N.W. 854); State v. Wheat, 63 Vt. 673 (22 A. 720);. Murphy v. State, 120 Ind. 115 (22 N.E. 106);. Glover v. Com., 86 Va. 382 (10 S.E. 420);. McKinny v. State, 29 Fla. 565. [76 N.W. 806] . (10 So. 732); State v. West, 39 Minn. 321 (40 N.W. 249); State v. Meinhart, 73 Mo. 562; In re. Lloyd, 51 Kan. 501 (33 P. 307); McClain Criminal Law,. section 464; Wharton Criminal Law, section 577. Contra, see Hardin v. State (Tex. Cr. App.). 39 ......
  • State v. Carnagy
    • United States
    • United States State Supreme Court of Iowa
    • October 20, 1898
    ...v. Wheat, 63 Vt. 673, 22 S. E. 720;Murphy v. State, 120 Ind. 115, 22 N. E. 106;Glover v. Com., 86 Va. 382, 10 S. E. 420;McKinny v. State, 29 Fla. 565, 10 South. 732;State v. West, 39 Minn. 321, 40 N. W. 249;State v. Meinhart, 73 Mo. 562,In re Lloyd (Kan. Sup.) 33 Pac. 307; McClain, Cr. Law,......
  • State v. Elliott
    • United States
    • Supreme Court of Oregon
    • November 23, 1955
    ...age of 14, who is conclusively proved to be physically incapable of committing rape, is also incapable of the attempt. See McKinny v. State, 29 Fla. 565, 10 So. 732; State v. Sam, 60 N.C. 293; Foster v. Commonwealth, 96 Va. 306, 31 S.E. 503, 42 L.R.A. 589; Reg. v. Phillips, 8 Car. & P. 736.......
  • Hardin v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 15, 1898
    ...with her consent. The following cases support this proposition: Hays v. People, 1 Hill, 351; People v. McDonald, 9 Mich. 150; McKinny v. State, 29 Fla. 565, 10 South. 732; Davis v. State, 31 Neb. 247, 47 N. W. 854; Territory v. Keyes, 5 Dak. 38 N. W. 440; People v. Tenelshof, 92 Mich. 167, ......
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