Stephens v. State

• Decision Date: 25 June 1886
• Parties: Stephens v. State.
• Court: Indiana Supreme Court

107 Ind. 185

8 N.E. 94

Stephens

v.State.

Supreme Court of Indiana.

June 25, 1886.

Appeal from Tippecanoe circuit court.

R. P. De Hart and Coffroth & Stuart, for appellant. F. T. Hord, Atty. Gen., for appellee.

Niblack, J.

This was a prosecution against the appellant, David Stephens, upon an indictment containing two counts. The first count charged the appellant with having made an attempt to commit a violent injury upon one Annie Myers, a female child under 12 years of age, with intent to feloniously ravish and carnally know her, the said Annie. The second count charged substantially the same offense, giving only the details of the alleged transaction with greater particularity. A jury found the appellant guilty as charged, and he was adjudged to pay a fine of $25, and to be imprisoned in the state's prison for the term of 10 years.

The evidence tended to show that Annie Myers, the prosecuting witness, was a female child between 11 and 12 years of age, and was a good deal upon the street, voluntarily soliciting contributions for the support of herself and her mother; that she did not know the appellant by name, yet she had frequently seen him upon the streets of the city of La Fayette, and had sometimes spoken to him; that at the foot of Brown street, in that city, there is a bridge across the Wabash river, known as the “Brown-street Bridge;” that during an afternoon in July, 1885, the appellant met Annie Myers, above named, on a street not far from the Brown-street bridge, and solicited her to go to the Brown-street bridge with him, promising to give her a nickel if she would go; that, she at first declining, he the second time urged and coaxed her to go, again promising to give her a nickel if she would consent to go; that she thereupon consented to go, and went to and into the bridge; that the appellant soon followed, and, after entering the bridge, opened his pantaloons, and, exposing his private parts to the child, had her place her hand upon that part of his body; that he then hugged and fondled the child, at the same time raising her clothes in front, and pressing his private parts against her body; that in this position he solicited her to permit him to have sexual intercourse with her, but she would not consent; that, dallying in this way for a few moments, he desisted from further liberties, gave the child a nickel, and went away; that everything that was done at the time was with the consent of the child, she objecting only to the proposed sexual intercourse, which the appellant did not urgently insist upon, and which he did not in any manner accomplish.

Section 1917 of the last revision of the statutes of this state declares that “whoever unlawfully has carnal knowledge of a woman, forcibly, against her will, or of a female child under twelve years of age, is guilty of a rape, and upon conviction thereof shall be imprisoned in the state's prison not more than twenty-one years, nor less than five years.” It was previously provided, by section 1909 of the same revision of the statutes, that “whoever perpetrates an assault, or an assault and battery, upon any human being, with intent to commit a felony, shall, upon conviction thereof, be imprisoned in the state's prison not more than fourteen years, nor less than two years, and be fined not exceeding two thousand dollars.”

Although the indictment in this case was formally based upon this latter section, a proper decision of this appeal involves, to some extent at least, a construction of both sections of the statutes above set out. It was enacted in 1852, as a part of our revised system of laws passed during that year, that thereafter “crimes and misdemeanors shall be defined, and punishment therefor fixed, by statutes of this state, and not otherwise;” and that provision of law still continues in force. Rev. St. 1881, § 237. In giving a construction to that enactment it has been uniformly held that we have no longer any common-law offenses in this state, and that, however immoral, reprehensible, or revolting an act may be, it cannot be punished either as a crime or misdemeanor unless it has been defined and declared to be either the one or the other by some statute. Rosenbaum v. State, 4 Ind. 599;Hackney v. State, 8 Ind. 494;Dillon v. State, 9 Ind. 408;Beal v. State, 15 Ind. 378;State v. Ohio & M. R. Co., 23 Ind. 362;Jones v. State, 59 Ind. 229. Unless, therefore, it was made to appear by the evidence that the appellant, in what he did, violated some express statutory provision, his conviction of the offense with which he was charged cannot be sustained.

Both counts of the indictment, in legal effect, charged the appellant with having made an assault upon the prosecuting witness with the intention of committing a rape upon her. It was therefore incumbent upon the state to prove that, at the time to which the evidence had relation, the appellant had the intention of committing a rape upon the prosecuting witness, and that he, at the same time, made an assault upon her in pursuance of that intention. It is conceded that if the appellant had persisted, and had succeeded, in having sexual intercourse with the prosecuting witness, he would have been guilty of rape. The fair inference, too, from the evidence was that he desired to have such sexual intercourse, and probably would have consummated his desire if circumstances had proved to be in all respects favorable to such a result. But to entitle the state to maintain a prosecution for an evil intention some concurring act must...