State v. Fisk

• Decision Date: 29 June 1906
• Citation: 15 N.D. 589,108 N.W. 485
• Parties: STATE v. FISK.
• Court: North Dakota Supreme Court

15 N.D. 589

108 N.W. 485

STATE

v.FISK.

Supreme Court of North Dakota.

June 29, 1906.

Syllabus by the Court.

Under the statutes of this state (section 8544, Rev. Codes 1905; section 6814, Rev. Codes 1899), a child under 7 years of age is legally incompetent to commit a crime. Between the ages of 7 and 14 they are presumed to be incompetent, but the presumption is not conclusive. To overcome the presumption of incompetency, the burden is upon the state to show by clear proof that the defendant knew the wrongfulness of the act when he committed it.

There is a presumption that a child under 14 is not physically capable of consummating the crime of rape, and by statute, a person of that age cannot be convicted of the offense “unless his physical ability to accomplish penetration is proved as an independent fact, and beyond a reasonable doubt.” Section 8891, Rev. Codes 1905; section 7157, Rev. Codes 1899.

In prosecution of persons between the ages of 7 and 14, for rape or an attempt to commit rape, the burden is upon the state to show the mental and physical competency of the defendant. In the absence of such proof, the presumption of incompetency must prevail.

When the record fails to show that a child under 14 years of age, who is charged with assault with intent to commit rape had the physical capacity to consummate the offense, a conviction for the attempt cannot be had. The legal incompetency in such a case extends both to the act and the attempt.

Appeal from District Court, Ransom County; Frank P. Allen, Judge.

Walter Fisk was indicted for assault. Verdict of not guilty, and the state appeals. Affirmed.

C. N. Frich, Atty. Gen., and Alfred M. Kvello, State's Atty., for the State. T. A. Curtis and F. S. Thomas, for respondent.

YOUNG, J.

An information was filed by the state's attorney of Ransom county, charging the defendant with the crime of assault with intent to commit rape. The testimony disclosed that the prosecutrix was a married woman 20 years of age, who had been married at the age of 16 and was the mother of two children, and that the defendant at the date of the alleged attempt was under 14 years of age. The court instructed the jury that under the evidence the defendant could not be found guilty of assault with intent to commit rape, and that the only offense for which he could be convicted was a simple assault, and then only upon finding that he knew its wrongfulness. The jury returned a verdict of not guilty, and the state has appealed and assigns error upon the instructions.

The case presents the question of the criminal responsibility of children under 14 years of age. The trial court gave the following instruction, which is assigned as error: “The only felony which the testimony shows the defendant could have intended to commit in this case would be an attempt to commit the crime of rape and under the view the court takes, you are instructed as a matter of law, you can, under no circumstances, find this defendant guilty of this crime, as the law presumes a boy of his age to be incapable of committing the crime of rape and no evidence has been offered to overcome this presumption.” Error is also assigned upon the court's refusal to give the following instruction requested by the state: “I charge you as a matter of law that impotency in a case of this kind, that is assault with intent to commit rape, is no defense. The essence of the crime of assault with intent to commit rape, is the outrage to the person and feelings of the female. The feelings of a woman may be outraged by the force and brutality of a man who is impotent as well as of a man who is not.”

In our opinion neither assignment can be sustained. The confusion which existed at common law as to the capacity of children to commit crime, has been removed in this state by express statute. Section 8544, Rev. Codes 1905 (section 6814, Rev. Codes 1899), so far as material, reads as follows: “All persons are capable of committing crime except those belonging to the following classes: (1) Children under the age of seven years; (2) children over the age of seven years, but under the age of fourteen years, in the absence of clear proof that at the time of committing the act or neglect charged against them they knew its wrongfulness.” Under the above section, a child under the age of 7 years is conclusively presumed to be incapable of committing a crime. In this respect it is the same as the common law, both of England and this country. Between 7 and 14, called the dubious age of discretion, the child is still presumed to be incapable, but the presumption is not conclusive. The state may overcome the presumption, but to do so, it must show by clear proof that the accused knew the wrongfulness of the act when he committed it. In the absence of such proof the presumption of incapacity must prevail. The burden is upon the state in such cases to prove knowledge of the wrongfulness of the act as an independent fact. In this respect the rule is the same as at common law. Angelo v. People, 96 Ill. 209, 36 Am. Rep. 132;State v. Adams, 76 Mo. 355;Stone v. R. R. Co., 115 N. Y. 109, 21 N. E. 712;Godfrey v. State, 31 Ala. 323, 70 Am. Dec. 494, and cases cited in note.

The foregoing may be said to refer to mental capacity. But the crime of rape, as well as the crime of assault with intent to commit rape, involves a further element, and that is the physical capacity to commit the offense. In England it was accepted as a fact that a child under 14 had not the physical capacity to commit the offense, and it was, therefore, held from an early day that the presumption of incapacity was conclusive. Evidence to show capacity was not admissible. Rex v. Eldershaw, 3 Car. & Payne, 396; Rex v. Groombridge, 7 Car. & Payne, 583; Reg. v. Philips, 8 Car. & Payne, 736; Reg. v. Jordan, 9 C. & P. 118. In this country several states followed the English common-law rule. Williams v. State, 20 Fla. 777;McKinny v. State, 29 Fla. 565, 10 South. 732, 30 Am. St. Rep. 140;State v. Sam Wrist, 60 N. C. 294;State v. Pugh, 52 N. C. 61;Foster v. Com. (Va.) 31 S. E. 503, 42 L. R. A. 589, 70 Am. St. Rep. 846;State v. Handy, 4 Har. (Del.) 566. See, also, Com. v. Green, 2 Pick. (Mass.) 380. The courts of other states, and with considerable unanimity, were of opinion that the English rule was not suited to this country on account of the difference in condition, the age of puberty apparently coming earlier, and held that the presumption of physical capacity was not conclusive, but that it may be overcome by proof that the defendant has reached the age of puberty and was capable of consummating the crime. People v. Randolph (N. Y.) 2 Parker Cr. R. 174; Williams v. State, 14 Ohio, 222, 45 Am. Dec. 536;Hiltabiddle v. State, 35 Ohio St. 52, 35 Am. Rep. 592;Gordon v. State, 93 Ga. 531, 21 S. E. 54, 44 Am. St. Rep. 189; Wagoner v. State, 5 Lea (Tenn.) 352, 40 Am. Rep. 36;Heilman v. Com., 84 Ky. 457, 1 S. W. 731, 4 Am. St. Rep. 207;State v. Jones, 39 La. Ann. 935, 3 South, 57. The law in this state is settled by statute in favor of the rule laid...