State v. Wheat

• Decision Date: 03 October 1891
• Citation: 63 Vt. 673,22 A. 720
• Parties: STATE v. WHEAT.
• Court: Vermont Supreme Court

22 A. 720

63 Vt. 673

STATE

v. WHEAT.

Supreme Court of Vermont, General Term.

Oct. 3, 1891.

Exceptions from Washington county-court; Ross, Judge.

Henry W. Wheat was convicted of assault with intent to commit rape, and excepts. Exceptions sustained.

J. G. Wing and A. G. Fay, for the State.

Geo. W. Wing, for respondent.

MUNSON, J. Our statutory provisions concerning rape are found in No. 63, Acts of 1886. In the first section of this act, provision is made for the punishment of a person over the age of 16 years who "ravishes and carnally knows a female person of the age of fourteen years or more, by force and against her will,"or "unlawfully and carnally knows a female person under fourteen years of age, with or without her consent." R. L. § 4117, provides for the punishment of one who "assaults a female person with intent to commit rape." This indictment charges that' the respondent, with force and arms, made an indecent assault upon one Alice M. Taylor, "with intent her, the said Alice M. Taylor, unlawfully, violently, and against the will of her, the said Alice M. Taylor, feloniously to ravish and carnally know." It contains no allegation of the age of either person. It appeared in evidence that the respondent was 28 years old, and that the person assaulted was under 14. The court instructed the jury that it was immaterial whether the girl consented to the attempted intercourse or not. The respondent contends that the statute, which would have deprived him of the defense of consent if his purpose had been accomplished, does not deprive him of that defense as regards the attempt, and that in the absence of any statutory provision an attempt which is consented to cannot be an assault. This contention is supported by decisions in several states. Smith v. State 12 Ohio St. 4(56; State v. Pickett, 11 Nev. 255. In other states the contrary view has been taken. Hays v. People, 1 Hill, 351; People v. McDonald, 9 Mich. 150; Fizell v. State, 25 Wis. 364. But we do not think a determination of this question is necessary to the disposal of the case at bar. The offense of having carnal knowledge of a female person against her will is distinct from that of having carnal knowledge of one under the age of 14 with her consent, although both offenses are rape. In the first offense the question of age is not involved. In the second offense, it is the age of the victim which eliminates the element of consent. On an indictment for committing the ordinary offense, one cannot be convicted of having had carnal knowledge of a person under the prescribed age with her consent. In an indictment for the later offense an averment of age is essential. Bonner v. State, 65...