Schang v. State

• Decision Date: 03 October 1901
• Citation: 31 So. 346,43 Fla. 561
• Parties: SCHANG v. STATE.
• Court: Florida Supreme Court

31 So. 346

43 Fla. 561

SCHANG v. STATE.

Florida Supreme Court

October 3, 1901

Error to circuit court, Nassau county; Rhydon M. Call, Judge.

William Schang was convicted of crime, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Our statute (section 2396, Rev. St.) providing that 'whoever ravishes and carually 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 prison for life,' defines the crime of rape; and while it is necessary under it to allege and prove a different state of facts in order to justify a conviction where the female involved is over the age of 10 years than where she is under that age,--the one case requiring force and want of the female's consent to be shown; the other requiring simply the carnal knowledge and abuse of the child and that she is under 10 years of age, to appear,--yet in either case the crime denounced is rape, punishable with the same penalty, of death or life imprisonment. In the case of children under 10 years of age, our law presumes that persons of such immature age are incapable of either consenting to or protesting against the act, and this presumption of incapacity applies as well to every act of her assailant tending towards the commission of the crime as to the consummated crime itself.

2. Under an indictment charging, in the terms of the statute simply the carnal knowledge and abuse of a female child under the age of 10 years, there may properly be a conviction of an assault with intent to commit rape. In such cases, whether the inquiry be as to the consummated crime, or as to an assault with intent to commit it, it is not necessary to allege or prove that the acts were done against the will of such child. Whether she consented or resisted is immaterial.

COUNSEL

B. B. MacDonell, for plaintiff in error.

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

OPINION

TAYLOR C.J.

At the spring term, 1900, of the circuit court for Nassau county, the plaintiff in error was indicted for rape of a child under 10 years of age, was then tried and convicted of an assault with intent to commit rape, and from the sentence imposed seeks relief here by writ of error.

The record before us shows nothing more than the indictment and its proper presentation by the grand jury, the arraignment and plea of not guilty of the defendant, the impaneling and swearing of the jury, the verdict, and sentence by the court.

The errors assigned are as follows:

'(1) The court below erred in receiving and recording the verdict of the jury in said cause, for the reason that the crime of assault with intent to commit a rape is not included in the charge upon which defendant in court below was tried.

'(2) The court below erred in entering judgment upon the verdict of the jury in the court below, the said verdict not being responsive to the charge upon which defendant in court below was tried.'

These two assignments of error both present the same question, and are so treated in the briefs of counsel for plaintiff in error.

The contentions of the plaintiff in error are that section 2396 of the Revised Statutes, under which the indictment was found, denounces two distinct offenses, viz.: Rape, in its common-law form; secondly, the carnal knowledge and abuse of a female child under the age of 10 years,--and that a charge of carnal knowledge and abuse of such child does not include the crime of assault with intent to commit a rape; that, to authorize a conviction of assault with intent to rape, the indictment must charge such assault specifically, or else charge the common-law crime of rape that includes the minor offense of assault with such intent; that the indictment simply charges the offense of carnal knowledge and abuse of a female child under 10 years of age, and does not charge rape; that it fails to use the word 'ravish,' that is absolutely essential to a charge of rape. Some authorities sustain these contentions. Bish. St. Crimes (3d Ed.) § 496, and citations. But they are untenable here. The charging part of the indictment is as follows: 'In and upon one Frankie Ferriers, a female child under the age of ten years, to wit, the age of five years, feloniously did make an assault, and her, the said Frankie Ferriers, then and there feloniously did unlawfully carnally know and abuse, contrary to the statute in such case made,' etc. Section 2396, Rev. St., under which this indictment was framed, reads as follows: '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 prison for life.' While it is necessary under this statute to allege and prove a different state of facts in order to justify...