State v. Lee

Decision Date20 March 1899
Citation33 Or. 506,56 P. 415
PartiesSTATE v. LEE.
CourtOregon Supreme Court

Appeal from circuit court, Washington county; T.A. McBride, Judge.

James Lee, Jr., was convicted of rape, and he appeals. Affirmed.

S.B Huston and M.L. Pipes, for appellant.

D.R.N Blackburn, Atty.Gen., and T.J. Cleeton, Dist. Atty., for the State.

MOORE, J.

The defendant, James Lee, Jr., was tried upon an indictment, the charging part of which is as follows: "That said James Lee, Jr., on the 17th day of June, A.D.1897, in the said county of Washington, state of Oregon, then and there being and being then and there a male person over the age of sixteen years, did then and there, willfully, unlawfully, and feloniously, forcibly ravish and have carnal, sexual intercourse with one Sarah Ann Hammock, a female child under the age of sixteen years;" and, having been convicted he was sentenced to imprisonment in the penitentiary for the term of three years, from which judgment he appeals.

This indictment was predicated upon a violation of the provisions of section 1733, Hill's Ann.Laws Or., as amended by the act of the legislative assembly approved February 23, 1895 which reads as follows: "If any person over the age of sixteen years shall carnally know any female child under the age of sixteen years, or any person shall forcibly ravish any female, such person shall be deemed guilty of rape, and, upon conviction thereof, shall be punished by imprisonment in the penitentiary for not less than three nor more than twenty years." Laws Or. 1895, p. 67. The state, to maintain its case, introduced evidence tending to prove that the prosecuting witness was only 12 years old when the alleged assault was committed, and that the defendant forcibly ravished her; but, having rested without offering any proof of the defendant's age, his counsel moved the court to instruct the jury to acquit him, which motion having been overruled, an exception was saved. The defendant offered to prove that at the time of the commission of the alleged crime he was not 16 years old, but the court, refusing to permit such testimony to be introduced, allowed an exception to its ruling. It is maintained that the indictment only charges the defendant with carnally knowing a female under the age of 16 years, and that the phrase "forcibly ravish," as used therein, is a mere statement of a legal conclusion deducible from the allegation of sexual intercourse, and founded upon the application of such force only as the law implies from the inability of the female, by reason of her immature age, to give her consent to an act of copulation, and, hence, that the allegation of defendant's age was material, a failure to prove which was such a variance as should secure a reversal of the judgment, and that the refusal of the court to permit the defendant to prove that he was under the age of 16 years at the time it is alleged that the crime was committed was the denial of a substantial right to his prejudice. Counsel for the state insist, however, that the indictment charges the commission of two offenses, viz. common-law and statutory rape, and that, inasmuch as no demurrer on account of the duplicity was interposed, the state had the right to adopt either theory of the case; that, having elected to rely upon the allegation of a forcible ravishment, the averment of defendant's age became immaterial; and that after verdict such averment should be rejected as surplusage, if the indictment properly charges the commission of the common-law offense. The statute, in prescribing the manner of stating an offense, provides that the indictment must charge but one crime, and in one form only (Hill's Ann.Laws Or. § 1273), and that any violation of this rule affords a ground of demurrer ( Id. § 1322), but, if no demurrer for the duplicity be interposed, the objection to the pleading on that account is thereby waived. Id. § 1330; State v. Bruce, 5 Or. 68; State v. Doty, Id. 491; State v. Jarvis, 18 Or. 360, 23 P. 251; State v. Horne, 20 Or. 485, 26 P. 665. An indictment which charges "that said A.B. on the ____ day of ____, 18__, in the county aforesaid, being then and there a male person over the age of sixteen years, carnally knew one C.D., a female child under the age of sixteen years," would have probably stated facts sufficient, under our statute, to have constituted a crime. 1 Hill's Ann.Laws Or. p. 1002, Form No. 7; Id. § 1269; Laws Or. 1895, p. 67. The rule was early established by the courts that the seeming acquiescence of a female of feeble mind or of very tender years to an act of sexual intercourse afforded no defense to an action of rape, because such female, being ignorant of the nature of the act, was incapable of yielding consent, from a defect of understanding. Hays v. People, 1 Hill, 351; Stephen v. State, 11 Ga. 225; O'Meara v. State, 17 Ohio St. 515; Moore v. State, Id. 521. Legislative assemblies, applying the rule thus established, have arbitrarily prescribed, in many instances, the age at which a female of ordinary intelligence is presumed to have attained such a degree of mental development as to be capable of consenting to the commission of that particular immoral act which, when discovered, ostracizes her from good society. "The law," says Mr. Justice Wolverton in ...

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14 cases
  • State v. Haji
    • United States
    • Supreme Court of Oregon
    • 7 Mayo 2020
    ...indictment had charged multiple crimes, if the defendant failed to timely demur on the ground of duplicity. See, e.g. , State v. Lee , 33 Or. 506, 56 P. 415 (1899).14 The dissent uses Clark and Carr for a different purpose. The dissent contends that those cases illustrate that, in 1908, an ......
  • State v. Stamper
    • United States
    • Court of Appeals of Oregon
    • 9 Febrero 2005
    ...that an underage victim did not actually consent to a sexual act" `may be treated as surplusage.'" Id. (quoting State v. Lee, 33 Or. 506, 510, 56 P. 415 (1899)). That legislative history certainly is consistent with Landino and with the state's contention that, because the law presumes that......
  • State v. Ofodrinwa
    • United States
    • Supreme Court of Oregon
    • 25 Abril 2013
    ...the victim's age as equivalent to an allegation that the defendant had forced himself on the victim without her consent. See State v. Lee, 33 Or. 506, 510, 56 P. 415 (1899) (treating those allegations as equivalent); State v. Horne, 20 Or. 485, 486, 26 P. 665 (1891) (holding that allegation......
  • State v. Peppie
    • United States
    • Supreme Court of Oregon
    • 15 Octubre 1946
    ...State v. Rowen, 104 Or. 1, 200 P. 901; State v. Parr, 54 Or. 316, 320, 103 P. 434; State v. Humphreys, 43 Or. 44, 70 P. 824; State v. Lee, 33 Or. 506, 56 P. 415; State v. Horne, 20 Or. 485, 26 P. We think defendant's fourth assignment is without merit. In the case of State v. Castner, 122 M......
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