State v. Dancy

• Decision Date: 30 June 1880
• Citation: 83 N.C. 608
• Court: North Carolina Supreme Court
• Parties: STATE v. MILLARD F. DANCY.

83 N.C. 608

STATE

v.MILLARD F. DANCY.

Supreme Court of North Carolina.

June Term, 1880.

INDICTMENT for an assault with intent to carnally know a female under ten years of age, tried at Spring Term, 1880, of WILKES Superior Court, before Buxton, J.

The indictment charged that the defendant in and upon one Mary Ann Whittington (an infant under the age of ten years), feloniously made an assault, and her the said Mary did beat, wound and ill-treat, with intent her the said Mary feloniously and unlawfully to carnally know and abuse, &c. The defendant was convicted, and his counsel insisted “that the offence charged in the indictment was distinct from an assault with intent to commit a rape, and that the punishment was not prescribed by statute as such, but was to be punished as a (common) misdemeanor, the intent alleged being mere matter of aggravation and not changing the grade of the offence.” But the court was of a different opinion and sentenced the defendant to imprisonment in the penitentiary for five years, from which judgment the defendant appealed.

Attorney-General, for the State .

The defendant was not represented in this court,

ASHE, J.

If unlawfully to carnally know and abuse a female under ten years of age is rape, then there is no error in the sentence of the court below, but if it is not, then it is erroneous.

The legislature has declared by the act of 1868, ch. 167, § 2, that “every person who is convicted in due course of law of ravishing and carnally knowing any female of the age of ten years or more, by force and against her will, or who is convicted in like manner of unlawfully and carnally knowing and abusing any female child under the age of ten years, shall suffer death.” The act of the state of Michigan, in relation to the punishment of the crime of rape, is almost identical with the above section. In the case of People v. McDonald, 9 Mich., 150, which was like our case, an indictment for an assault with intent to carnally know an infant under the age of ten years, the court held, “both these offences are rape, as they come within the common law definition of that offence. The distinction between them relates solely to the character and amount of proof required to convict of the offence. Force and want of consent must be satisfactorily shown in the case of carnal knowledge of a female of the age of ten or more, but they are conclusively presumed in the case of such knowledge of a female child under that age, and no proof will be received to repel such presumption.”

According to SIR WM. BLACKSTONE rape is the carnal knowledge of a woman...