State v. Johnston

Decision Date31 January 1877
Citation76 N.C. 209
CourtNorth Carolina Supreme Court
PartiesSTATE v. RUFUS JOHNSTON.
OPINION TEXT STARTS HERE

INDICTMENT for Rape, tried at Fall Term, 1876, of MECKLENBURG Superior Court, before Schenck, J.

The case is so fully discussed by Mr. Justice Reade in delivering the opinion of this Court, that any further statement is deemed unnecessary.

Attorney General, for the State .

Mr. W. W. Flemming, for the defendant cited, State v. Sam , 1 Winst. 300; State v. Burgess, 74 N. C. 272; State v. Farmer, 4 Ire. 224, and East. 435.

READE, J.

“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.” Laws 1868-'9, ch. 167, § 2.

“Every person convicted by due course of law of an assault with intent to commit a rape upon the body of any female shall be imprisoned in the State prison, not less than five nor more than fifteen years.” Ibid. § 3.

The above sections which immediately follow each other in the original Act, are brought forward in Bat Rev. as sections 2 and 3 of ch. 32.

The indictment is for an assault with intent to commit a rape under the third section of the original Act, which is the fifth section of ch. 32, Bat. Rev. And the proof was that the female was under ten years of age, although the indictment says nothing about the age.

The defendant makes the point that he cannot be convicted, because a rape cannot be committed upon a female under ten years of age; that the unlawful carnal knowledge and abuse of a female is a crime but not the crime of rape.

Rape is the carnal knowledge of a female forcibly and against her will. 3. Inst. 60; 4. Black. Com. 210; 3. Chit. C. L. 810. This definition leaves out the elements of age altogether. And it seems to be left in some obscurity how and why that element came to be considered. Probably it was in this way; there were instances where children below the age of discretion were enticed to yield, without a full knowledge of the nature of the act and of the consequences; and therefore, it became necessary to fix an age under which it should be presumed, not that the act could not be consummated, but that consent could not be given. And so it came to be provided, that the consummation of the act upon a female under ten years of age, with or without her consent, shall be the same as if consummated upon a female over ten years of age without her consent or against her will. And the object of 18 Eliz. which enacts “that if any person shall unlawfully and carnally know and abuse any woman child under the age of ten years, every such unlawful and carnal knowledge and abuse shall be felony without benefit of clergy” was not to create a new offence distinct from rape, but it was to make such carnal knowlege and abuse, rape. The reason why the act does not call it rape in so many words, is, because of the seeming incongruity of calling an act rape when it is by consent, whereas the established meaning of rape is “against her will.” But still when Mr. Chitty gives his form for an indictment under the statute he heads it, “Indictment for rape of children within the age of consent,” which shows that he regards the crime as rape. And so, this Court in State v. Storkey, 63 N. C. 7, says, “O...

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35 cases
  • State v. Crawford, 361
    • United States
    • North Carolina Supreme Court
    • November 27, 1963
    ...will.' State v. Jim, 12 N.C. 142. This was the early definition of the crime, and it is still a correct definition of the crime. State v. Johnston, 76 N.C. 209; State v. Marsh, 132 N.C. 1000, 43 S.E. 828, 67 L.R.A. 179; State v. Johnson, 226 N.C. 671, 40 S.E.2d 113. Our statute, G.S. § 14-2......
  • State v. Primus
    • United States
    • North Carolina Supreme Court
    • November 6, 1946
    ... ... against her will. ' State v. Jim, 12 N.C. 142 ... This was the early definition of the crime, and it still has ... the same significance in the law. State v. Marsh, ... 132 N.C. 1000, 43 S.E. 828, 67 L.R.A. 179; State v ... Johnston, 76 N.C. 209. Our statute also makes it rape, ... carnally to know and abuse any female child under the age of ... twelve years, even though she consents. G.S. s 14-21; ... State v. Storkey, 63 N.C. 7. In other words, ... 'ravishing and carnally knowing any female of the age of ... twelve ... ...
  • State v. Carnagy
    • United States
    • Iowa Supreme Court
    • October 20, 1898
    ... ... State v ... Grossheim, 79 Iowa 75, 44 N.W. 541; State v ... Newton, 44 Iowa 45. See, also, State v. Ruhl 8 ... Iowa 447; Fizell v. State, 25 Wis. 364; Com. v ... Roosnell, 143 Mass. 32 (8 N.E. 747); People v ... McDonald, 9 Mich. 150; State v. Johnston, 76 ... N.C. 209; Stephen v. State, 11 Ga. 225; People ... 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 ... ...
  • State v. Carnagy
    • United States
    • Iowa Supreme Court
    • October 20, 1898
    ...State v. Ruhle, 8 Iowa, 447;Fizell v. State, 25 Wis. 365;Com. v. Roosnell (Mass.) 8 N. E. 747;People v. McDonald, 9 Mich. 150;State v. Johnston, 76 N. C. 209; Stephen v. State, 11 Ga. 226; People v. Gordon (Cal.) 11 Pac. 762;Hays v. People, 1 Hill (N. Y.) 351;Territory v. Keyes (Dak.) 38 N.......
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