Toullee v. State

• Decision Date: 01 December 1893
• Parties: TOULLEE v. STATE.
• Court: Alabama Supreme Court

14 So. 403

100 Ala. 72

TOULLEE v. STATE.

Supreme Court of Alabama

December 1, 1893

Appeal from city court of Mobile; O. J. Semmes, Judge.

Louis Toullee, alias Louis Toulet, was convicted of an assault with intent to ravish, and appeals. Reversed.

W. S Reese and Sam Brown, for appellant.

Wm. L Martin, Atty. Gen., for the State.

STONE C.J.

The third count of the indictment in this case charges that the defendant assaulted "Mamie Riley, a girl under the age of 10 years, with the intent to carnally know her." It contains no averment that the defendant succeeded in having carnal knowledge of her, or that he abused her in an attempt to have such carnal knowledge. Our statute bearing on the question which may be supposed to have given rise to this count is section 3739 of the Criminal Code of 1886, and is in the following words: "Any person who has carnal knowledge of any female under ten years of age, or abuses such female in the attempt to have carnal knowledge of her must, on conviction, be punished by death, or by imprisonment in the penitentiary for life." The count is wholly insufficient under this section of the Code. We may be pardoned for saying, in passing, that, when the indictment is under this section of the Code, neither violence used or threatened, nor the consent of the female, vel non, is a material ingredient of the offense. A child under 10 years of the age is incapable of giving consent, as this section clearly treats the subject. Moreover, the proof entirely failed to establish such case. He neither had carnal knowledge of the child, nor did he abuse or injure her in any attempt to have such carnal knowledge.

Section 3736 of the Code declares the punishment for rape to be the death penalty, or life imprisonment in the penitentiary. Section 3737 defines what is sufficient proof of the consummation of the act to constitute rape, the other essentials being shown. The first and second counts of the indictment contain the charge under which defendant was convicted. They are framed under section 3751 of the code which declares that "any person who commits an assault on another, with intent to *** ravish *** must, on conviction, be punished by imprisonment in the penitentiary for not less than two, nor more than twenty years." The indictment conforms to the form prescribed by the Code, (No. 13.) The sole question is whether there was testimony sufficient to go to the jury on the inquiry whether, in the assault the testimony tends to prove the defendant made, he intended to commit the crime of rape. The defendant requested the court to charge the jury "that under the evidence in this case the jury cannot find the defendant guilty of assault with intent to rape." This charge was asked in writing, was refused by the court, and defendant excepted. Although a child under 10 years of age is incapable of giving her consent to cohabitation, and, as a consequence, any cohabitation or attempted cohabitation with such child must be treated as if it were perpetrated or attempted without her legal consent, yet we do not think it was the intention of the law-making power to constitute the same a rape, in the absence of force or violence in the act done or attempt made. In other words, if the act done or attempted be not against consent,-that is, be not accomplished or attempted against consent, and with violence, actual or constructive,-then the case falls within section 3739 of the Code, and must be governed by its provisions. It is not an assault with intent to commit a rape, under section 3751 of the Code. Our statute, section 3739 of the Code, was evidently intended to take the place and cover the ground of English statutes which have long been of force, and have been many times construed. It has been uniformly held that if the girl consents, even though she be under 10 years of age, the act is not a rape. It is only a statutory crime,-a felony or misdemeanor, as the statute may prescribe. Queen v. Read, 1, Denison, Cr. Cas. 385; Reg. v. Martin, 9 Car. & P. 213; Reg. v. Mehegan, 7 Cox, Crim. Cas. 145; Reg. v. Johnson, Leigh & C. 632; Queen v. Beale, L. R. 1 Cr. Cas. 10; 4 Bl. Comm. marg. p. 257. The authorities on this question, however, are not entirely uniform. See 19 Amer. & Eng. Enc. Law, 948, 949. But the question of consent is not the turning point in this case.

There can be no question, if the testimony of the little girl Mamie Riley, be believed, that the defendant committed an assault upon her. Taking her by the hand and leading her into the woods, laying her down, etc., constituted an assault. The attendant circumstances must determine its aggravation, or the contrary. The graver inquiry is, had he the intent to commit a rape upon her, and was there any evidence of such intent? "Without force, actual or constructive, there can be no rape. It must be shown that the prisoner intended to gratify his passion at all events, and notwithstanding the utmost resistance on the part of the woman. The force used must be sufficient to accomplish his purpose, but need not be such as to create a reasonable apprehension of death. If the woman submits from terror, or the dread of greater violence caused by threats, the intimidation becomes equivalent to force." 19 Amer. & Eng. Enc. Law, 950. In the case of Charles v. State, 11 Ark. 389, the defendant was indicted and convicted of an assault with intent to ravish a young girl within the age of puberty....