State v. Mahoney

• Decision Date: 02 July 1900
• Citation: 24 Mont. 281
• Parties: STATE v. MAHONEY.
• Court: Montana Supreme Court

24 Mont. 281

STATE

v.MAHONEY.

Supreme Court of Montana.

July 2, 1900.

Appeal from district court, Silverbow county; William Clancy, Judge.

Edward Mahoney was convicted of rape, and he appeals. Affirmed.

M. J. Cavanaugh, for appellant.

C. B. Nolan, Atty. Gen., for the State.

PIGOTT, J.

Edward Mahoney, convicted of the crime of rape, appeals from the judgment of conviction and an order denying his motion for a new trial.

1. The information charges that the defendant, on or about the 10th day of January, 1897, and before the filing of the information, “did willfully and unlawfully and feloniously and violently, in and upon one Nellie Corbitt, a female then and there under the age of sixteen years, to wit, of the age of fifteen years, the said Nellie Corbitt not being the wife of the said defendant, Edward Mahoney, make an assault, and her, the said Nellie Corbitt, then and there, violently and against her will, feloniously did ravish and carnally know.” As defined by section 450 of the Penal Code, “rape is an act of sexual intercourse accomplished with a female not the wife of the perpetrator, under either of the following circumstances: (1) Where the female is under the age of sixteen years. *** (3) Where she resists, but her resistance is overcome by violence or force. ***” The first point argued by the defendant is that the information charges two offenses, and is therefore violative of that part of section 1836, Id., which declares that the information must charge but one offense. The only method by which the supposed fault now urged can be taken advantage of is by a demurrer interposed under subdivision 3, § 1922, Id. The failure so to demur is a waiver of the objection. Sections 1930, 2200, 2320, Id. Again, if the offense be single, the question of whether it should have been set forth in different forms under separate counts was not raised in the trial court, and is therefore not considered here. Any objection to the inclusion in one count of the statement of different forms of the same offense must be made in the district court, and before plea.

2. The defendant next insists that the evidence was wholly insufficient to support the verdict. After a careful reading of the transcript, we are satisfied that the evidence was sufficient to justify the verdict. One of the suggestions made by counsel for the defendant is that, since the information charges the defendant with ravishing the prosecutrix violently and against her will, it was incumbent upon the state to prove that her resistance was overcome by force or violence, even if she was under the age of consent when the defendant copulated with her. Such is not the law. A woman under the age of 16 years is not in Montana capable of giving consent to sexual intercourse. Her submission or want of resistance is not, and cannot be, consent. She is incapable of forming a criminal intent to commit the act, and hence, in legal contemplation, is not an accomplice to her own violation. If the prosecutrix was under the age of 16 years when the defendant carnally knew her, the defendant is guilty. Whether she submitted with or without resistance, or even solicited his embraces, is immaterial, except, perhaps, as bearing upon the extent of the punishment to be imposed, and the allegation that the act was done violently and against her will, not being descriptive, may be rejected as surplus age. But, if she was 16 years of age or over, the allegation that the act of sexual commerce was perpetrated by violence and against her will (or some like averment) is essential, and must be proved. In the case at bar the evidence tending to show resistance by the prosecutrix was weak. There was, however, ample evidence showing that she was under the age of 16 at the time the defendant accomplished the act of sexual...