State v. Henry W. Wheat

• Decision Date: 01 October 1890
• Citation: 22 A. 720,63 Vt. 673
• Parties: STATE v. HENRY W. WHEAT
• Court: Vermont Supreme Court

22 A. 720

63 Vt. 673

STATE v. HENRY W. WHEAT

Supreme Court of Vermont

October 1, 1890

GENERAL TERM, OCTOBER, 1890.

Indictment for an assault with an intent to commit rape. Trial by jury at the September term, 1889, Washington county Ross, J., presiding. Verdict of guilty.

Exceptions sustained, and cause remanded for new trial.

Geo W. Wing, for the respondent.

Royce Ch. J., and Powers, J., did not sit.

OPINION

MUNSON

Our statutory provisions concerning rape are found in No. 63, Acts of 1886. In the first section of this act provision is made for the punishment of a person over the age of sixteen years who "ravishes and carnally knows a female person of the age of fourteen years or more, by force and against her will," or "unlawfully and carnally knows a female person under fourteen years of age, with or without her consent." R. L. 4117 provides for the punishment of one who "assaults a female person with intent to commit rape."

This indictment charges that the respondent with force and arms made an indecent assault upon one Alice M. Taylor, "with intent her, the said Alice M. Taylor, unlawfully, violently, and against the will of her, the said Alice M. Taylor, feloniously to ravish and carnally know." It contains no allegation of the age of either person. It appeared in evidence that the respondent was twenty-eight years old, and that the person assaulted was under fourteen. The court instructed the jury that it was immaterial whether the girl consented to the attempted intercourse or not.

The respondent contends that the statute which would have deprived him of the defense of consent if his purpose had been accomplished, does not deprive him of that defense as regards the attempt; and that in the absence of any statutory provision an attempt which is consented to cannot be an assault. This contention is supported by decisions in several States. Smith v. State, 12 Ohio St. 466; 80 Am. Dec. 355; State v. Pickett, 11 Nev. 255; 21 Am. Rep. 754. In other States the contrary view has been taken. Hays v. The People, 1 Hill 351; The People v. McDonald, 9 Mich. 150; Fizell v. State, 25 Wis. 364. But we do not think a determination of this question is necessary to the disposal of the case at bar.

The offence of having carnal knowledge of a female person against her will, is distinct from that of having carnal knowledge of one under the age of fourteen with her consent, although both offences are rape. In the first offence, the question of age is not involved. In the second offence, it is the age of the victim which eliminates the element of consent. On an indictment for committing the ordinary offence, one cannot be convicted of having had carnal knowledge of a person under the prescribed age, with her consent. In an indictment for the latter offence an averment of age is essential. Bonner v. State, 65 Miss. 293; State v. Erickson, 45 Wis. 86. This indictment charges an assault with intent to commit the ordinary offence,...