State v. Smith

• Decision Date: 01 October 1892
• Citation: 14 Del. 588,33 A. 441
• Court: Court of General Sessions of Delaware
• Parties: THE STATE v. JAMES CORBETT SMITH

33 A. 441

14 Del. 588

THE STATE v. JAMES CORBETT SMITH

Court of General Sessions of Delaware, Kent County

October 1, 1892

James Corbett Smith (colored) was indicted for assault with intent to commit a rape upon Emma D. Middleton, a little girl about four and a half years old.

The uncontradicted testimony as produced on the part of the State showed the following facts: That on July 14, 1892, Mrs. Mary E. Middleton, the mother of the child alleged to have been assaulted, had placed Emma, after washing and dressing her upon the back porch of the house; that shortly afterwards she went to the back porch and not seeing the child, called to her several times, but without eliciting any response; that on the day in question the prisoner at the bar had been ordered to assist her about the house, as was his custom before going to work in the field; that at the time she missed her said child the prisoner was supposed to be engaged in carrying in wood from the wood pile, near at hand, to the kitchen of the farm house; that upon receiving no answer when she called her daughter, Mrs. Middleton then called the prisoner's name several times, but he also failed to answer; that thereupon she looked from the porch across a low gate between the wood pile and the house toward the wood pile, when she saw the prisoner apparently on his all fours behind a low pile of wood in about the position he would be if picking up chips; that she immediately went to the place where she saw the prisoner, Smith, and in the very spot at which she first saw him she found little Emma apparently terrified, in tears, with her underclothes unbuttoned and also unmistakable evidence of the dastardly crime upon her garments; that the prints of the little girl's shoe heels were plainly visible in the soft earth where she was found as were also the toe prints of the prisoner; that she took the child into the house, changed her clothes and examined her private parts to see their condition; that she found the same red and apparently chafed; that within an hour after the occurrence the family physician, Dr. William H. Cooper, was sent for who also examined the child with a view of ascertaining her condition, but who failed to find any evidence of penetration.

James D. Wright, a constable of Kent County, living at Kenton testified that the prisoner was brought to his house by two citizens from Maryland early on the morning of Sunday, July 17th, and was brought by him to Dover and surrendered to the Sheriff of Kent County.

John R Nicholson, Attorney General (to witness): "Did he make any statement or confession in your hearing?"

John B. Penington, for the defendant, (to witness): "Were those statements or confessions made in your presence, taken down in writing?" A. "I do not know."

Mr Penington (to the Court): "I object; before he can prove this confession orally, he must prove that it was not reduced to writing.

The Court, GRUBB, J., overruled the objection on the authority of a decision in the case of the State v. Vincent, Houston's Delaware Reports of Criminal Cases, p. 11.

The witness then replied to the above question of the Attorney General by stating that the prisoner had confessed to him on his way to the jail that he had done this thing, and succeeded in effecting a discharge by rubbing between the child's legs.

The State here rested.

The defence offered several witnesses who testified as to the previous good character of the prisoner.

Mr. Penington then asked the Court to eliminate from the jury box all of the testimony adduced by the State, for the following reasons:

1. That the crime as charged is "Intent to commit a rape," whereas if it had been accomplished, it would not have been a rape; under this indictment it could not be sustained, because it has been perpetrated on a child under seven years of age; that indictment should have been drawn under the provision of the statute against carnally knowing and abusing a female child under seven years of age. Paynter's Digest (of 1874), Sec. 10, p. 766.

2. If the Court hold that the two statements in the Code are to be construed as a rape, then there are two classes of rape, and proof of one kind will not sustain a charge of rape of another kind, nor of intent to commit the other kind, nor even of assault; and evidence of this kind was not admissible. 50 Black's Indiana Reports, Greer v. The State, 267; 17 Iowa 75; 82 Iowa 749; 1 Swann's Tennessee Reports, 160, State v. Cherry; 55 Alabama, 264, Vasser v. The State.

3. If rape consists solely and alone of the common law definition of rape as limited and controlled by the enactments, or the words which are adopted into Section 10 of the Revised Code, then an indictment for committing a rape upon a subject which is embraced in the definition of the other felony cannot be sustained or supported by evidence of that other felony or of an attempt to commit that other felony. 1 Swan's Tenn. Reports, 160, State v. Cherry; 50 Barber's Supreme Court Reports, 128 to 134, People v. Hugh Quinn.

4. As to the question of intent; unless the jury shall believe that the accused in making the alleged assault intended to have criminal connection with the female, at all hazards, he cannot be convicted of an assault with intent to commit rape; in other words, if the jury believe at the time the assault was made, with the opportunity for perpetrating the offence visible or present, he made no effort to commit the act by attempting the penetravit,--then they cannot presume that the intent rested in his mind to commit the act. 1 Russel and Ryan, 130, Rex v. Nichol.

John R. Nicholson, Attorney General for the State, replied to the proposition that there is no law in this State to punish an outrage of this nature upon a female child under the age of seven years. The indictment was that the prisoner "did assault her, the said Emma D. Middleton, violently and against her will and with intent feloniously to ravish and carnally know," being an indictment for an assault with intent to commit a rape. The statute law of this State says: "That if any person shall assault any female with intent to commit rape, such person shall be deemed guilty of felony and punishable with death." Hales Pleas the Crown, 1st Volume, 1st Edition, page 628, defines the crime of rape; and the same authority at page 630, states that the carnal knowledge of a female child under the age of ten years is rape, either with or without her consent. The object of the statute of Elizabeth was merely to settle a disputed point as to the question of evidence where rape was committed upon a child under the age of ten years--whether it was incumbent upon the prosecution to prove affirmatively violence or whether it was to be conclusively presumed to be against her consent, citing 2 Bishop on Criminal Law, Sec. 1112 (referring to Statute of Eliz.); 18 Elizabeth, Chap. 7; 1 East Pleas the Crown; Sec. 1118, 2 Bishop on Criminal Law, (that the girl is never too young, provided the rape is proved to have been committed on her); 1 Vol. Del. Laws, page 67, Sec. 5 (passed in 1719); Vol. 6, Del. Laws, 711 (passed 1826 changing previous law regarding crime of rape in Vol. 1); Vol. 14 Laws of Del., Chap. 125, p. 117 (passed in 1871 further amending the law relating to rape); 4 Harrington, 566, State v. Elias Handy; 4 Gray (Mass. Reports) 7, Commonwealth v. James Sugland; 1 Hill, 351, Hayes v. The People; 1 Archibald's Criminal Practice and Pleading, p. 1020 (top paging, note; star paging, 312); 9 Carrington and Payne, 722, Regina v. Day and other authorities.

Verdict guilty.

John R. Nicholson, Attorney General for the state.

John B. Penington, for the defendant.

OPINION

GRUBB, J. charging the Jury:

Gentlemen of the Jury: This indictment which you are empaneled to try is founded upon Section 11 of Chapter 127 of the Revised Statutes, which provides: "That if any person shall with violence assault any female with intent to commit a rape such person shall be deemed guilty of felony." This indictment charges that James Corbett Smith, the prisoner at the bar, a certain Emma D. Middleton...