State v. West

• Decision Date: 02 November 1888
• Citation: 40 N.W. 249,39 Minn. 321
• Parties: STATE v WEST.
• Court: Minnesota Supreme Court

39 Minn. 321

40 N.W. 249

STATEvWEST.

Supreme Court of Minnesota.

November 2, 1888.

(Syllabus by the Court.)

Under section 245 of the Penal Code, the taking of indecent liberties with or on the person of a female child under the age of 10 years, without regard to whether she consents to the same or not, constitutes an assault.

Under an indictment for an assault with intent to carnally know and abuse the child, the defendant may be convicted of taking indecent liberties with her person, if within the allegations of the indictment.

A verdict of “guilty of an indecent assault” sufficiently describes the offense.

Case certified from district court, Hennepin county; HICKS, Judge.

Moses E. Clapp, Atty. Gen., and F. F. Davis, Co. Atty., for the State.

C. F. Baxter, for E. S. West, appellant.

MITCHELL, J.

This case is certified to this court for its opinion upon two questions of law: First, whether, under an indictment for an assault upon a female under the age of 10 years, with intent to carnally know and abuse her, if the intent alleged be not proven, the defendant may be convicted, under section 245 of the Penal Code, of taking indecent liberties with the person of the child; and, if so, second, whether a verdict of “guilty of an indecent assault” sufficiently describes the offense. No question is raised as to whether an indictment will lie for an assault with intent to carnally abuse a female under the age of 10 years, nor as to the form of the allegations of the indictment in the present case. The point made is that in no case under an indictment for assault with intent to ravish or carnally abuse can a defendant be convicted, under section 245, of taking indecent liberties with the person of the female, the latter being, as is contended, a separate and independent crime-not a part of or included in the crime charged. The last clause of section 19, c. 114, Gen. St. 1878, provides that “in all other cases [those not within the preceding provisions of the section] the defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment.” This provision, which is but declaratory of the common law, is not repealed by the Penal Code. There can be no question, therefore, but that, under an indictment for an assault with intent to commit a crime, the defendant may be convicted of an assault (if within the allegations of the indictment) because necessarily included in the crime charged. Section 245 of the Penal Code,...