State v. Tinkler
| Decision Date | 11 November 1905 |
| Docket Number | 14,514 |
| Citation | 83 P. 830,72 Kan. 262 |
| Parties | THE STATE OF KANSAS v. JESSE TINKLER |
| Court | Kansas Supreme Court |
Decided. July, 1905.
Appeal from Saline district court; ROLLIN R. REES, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1 RAPE--Definition--"Unlawfully." Section 2016 of the General Statutes of 1901 defines a crime against a female under eighteen years of age. The word "unlawfully" is there used in the sense of "without authority of law," or "not permitted by law."
2. RAPE--Evidence--Elements of the Crime. Evidence that the defendant carnally knew the child, that she was under eighteen years of age and that he was not married to her at the time is sufficient to sustain the charge.
C. C. Coleman, attorney-general, and C. W. Burch, county attorney, for The State.
David Ritchie, and Corder & Hunt, for appellant.
OPINION
The counsel for the defendant have manifested a commendable degree of zeal and industry, as well as considerable erudition, in their effort to convince this court that the word "unlawfully," as used in section 2016 of the General Statutes of 1901 and in the information in this case, means "denounced as a crime," or "made criminal by a statute of this state." It is urged that words used in the definition, and in the charging, of crime should be strictly construed; that their meaning should not be stretched to cover a supposititious intent of the legislature, or to make criminal acts that the court might deem it expedient to punish but which are not included in the clearly expressed provisions of the criminal statute. It is said that by no statute other than the one under consideration is sexual intercourse between a single man and a single woman or a female child, which is not incestuous and is not procured by promise of marriage nor by force, made criminal; hence, that it is not unlawful. To all this, except the conclusion, we assent.
On the other hand the obvious intent and purpose of the law should not be defeated by any hypercritical construction of words. Our rule of construction is prescribed by section 7342 of the General Statutes of 1901, as follows:
"Words . . . shall be construed according to the context and the approved usage of the language; but technical words. . . . and such others as may have acquired a peculiar and appropriate meaning in law, shall be construed according to such peculiar and appropriate meaning."
Judged by either of these tests--"the approved usage of the language" or the "peculiar and appropriate meaning in law"--if, indeed, the word has acquired any peculiar meaning in law, "unlawful" is not synonymous with "criminal." To speak of an act as unlawful is not equivalent to saying that it has been denounced as a crime. Every criminal act is illegal or unlawful, but illegal or unlawful acts may not be criminal. Offenses against public law are criminal; offenses against private rights are merely illegal or unlawful. In law literature we meet the word constantly in the sense of "not authorized or permitted by law;" thus, unlawful interest, unlawful entry (referring to a trespass), etc. In the common-law definition of murder, "the unlawful killing of a human being with malice aforethought," and of manslaughter, "the unlawful killing of a human being without malice," the word is used in the same sense as in section 2016 of the General Statutes of 1901, viz., without legal justification or excuse--without legal authority or right. The word "unlawful" is used in this sense in section 5511 of the Revised Statutes of the United States, as interpreted by the supreme court of the United States in United States v. Watson, 17 F. 145, 149. (See, also, Terrell v. State, 86 Tenn. 523, 531, 8 S.W. 212; State of Iowa v. Lightfoot, 107 Iowa 344, 348, 78 N.W. 41, 42.)
Authorities could be multiplied, but it is unnecessary. It is conceded that this contention has been adversely decided by this court in The State v. Frazier, 54 Kan. 719, 39 P. 819 which we are asked to reverse. While some expressions in that case might well be modified, we reaffirm the decision. "Unlawfully...
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...have long held the statement of a rape victim is legally sufficient to sustain a conviction for that offense. See State v. Tinkler, 72 Kan. 262, 264–65, 83 P. 830 (1905). So the Cardwell court presumed to decide nothing more than the sufficiency of the corroboration of the confessions. Nor ......
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...173 App. Div. 375, 159 N. Y. Supp. 410;State v. Gaimos, (Mont.) 162 Pac. 596;State v. Smith, 95 Wash. 271, 163 Pac. 759;State v. Tinkler, 72 Kan. 262, 83 Pac. 830. [9] Our attention will be next given to the action of the court in refusing to give the jury certain instructions tendered by a......
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