Warner v. State

• Decision Date: 03 July 1891
• Citation: 17 S.W. 6,54 Ark. 660
• Parties: WARNER v. STATE
• Court: Arkansas Supreme Court

17 S.W. 6

54 Ark. 660

WARNER v. STATE

Supreme Court of Arkansas

July 3, 1891

APPEAL from Sebastian Circuit Court, Greenwood District, EDGAR E BRYANT, Judge.

Judgment reversed and cause remanded.

Appellant pro se.

1. The indictment does not charge that Jennie Jones was a "female." Mansf. Dig., secs. 1568; 1 Whart. Cr. Law, 574.

2. A conviction of carnally knowing a female child under the age of puberty, cannot be sustained under this indictment. Apt words are not used. Mansf. Dig., sec. 1571; 50 Ind. 267; 1 Whart. Cr. Law, sec. 572; 45 Wis. 86.

3. The verdict acquits defendant of rape, but finds him guilty of a crime with which he is not charged.

W. E Atkinson, Attorney General, for appellee.

OPINION

HUGHES, J.

The appellant was tried and convicted of "carnally knowing Jennie Jones, a female child under the age of puberty," and sentenced to the State penitentiary for five years upon the following indictment:

"The grand jury of Sebastian county, in and for the Fort Smith district thereof, in the name and by the authority of the State of Arkansas, accuse Edward Warner of the crime of rape committed as follows, to wit: The said Edward Warner did, on the 24th day of July, 1890, in the county and district aforesaid, feloniously, forcibly, unlawfully, and against her consent, carnally know Jennie Jones," etc.

The appellant demurred to the indictment on the grounds:

(1.) "That the indictment does not state facts sufficient to constitute a public offense."

(2.) "The said indictment does not state facts sufficient to constitute the offense charged."

The demurrer was overruled, to which he excepted, and filed a motion to quash the indictment because he, being confined in jail, was not brought out and permitted to be present at the organization of the grand jury that returned the indictment. This motion was overruled. Appellant excepted.

The bill of exceptions sums up the evidence as follows:

"There was testimony tending to show that the defendant carnally knew Jennie Jones, a female, forcibly and against her will, and that Jennie Jones was at the time 11 years old. There was other testimony tending to show that the act was committed with the consent of Jennie Jones, and not forcibly and against her will, and that she was under the age of puberty, and under 12 years of age. There was testimony tending to show that Jennie Jones was a female child under the age of puberty; that on account of her tender years she did not understand the nature of the act. There was testimony tending to show that she did understand the nature of the act and was under 12 years of age," etc.

The court amongst others gave to the jury the following instructions numbered 3 and 4:

3. You are also instructed that a rape can be committed on a child; and if she is under 12 years of age and because of her youth does not understand the nature of the act, then the law says she cannot consent, and carnal knowledge had with her is rape punishable by death. But if she does understand the nature of the act and consents thereto, though she be under the age of 12 years, then it is not rape punishable by death, but it is punishable as a lower grade of rape by imprisonment in the penitentiary for not less than five nor more than twenty-one years. In other words carnal knowledge had with a child under 12 years of age is punishable, whether had with her consent or not. If, on account of her tender years, she does not understand the nature of the act, it is punishable by death. But if she does understand the nature of the act and consents to it, then it is punishable by imprisonment as stated above.

4. Now you are instructed that if defendant had carnal knowledge with Jennie Jones, and Jennie Jones was at that time under 12 years of age, then the defendant is guilty, but whether of the grade of offense punishable by death or by imprisonment depends upon whether Jennie Jones understood the character of the act; if she did not, then he is guilty of the offense punishable by death; if she did understand it, and it was done forcibly and without her consent, then it is punishable by death. But if she understood the nature of the act and consented, then he is guilty of the lower offense, and punishable by imprisonment in the State penitentiary for not less than five nor more than twenty-one years.

Following are the grounds of the motion for a new trial filed by appellant, which was overruled, to which he excepted.

1. The court erred in overruling defendant's motion to quash indictment.

2. The court erred in overruling defendant's demurrer to indictment.

3. The indictment does not state facts sufficient to constitute the offense of which the defendant was convicted.

4. The court erred in giving instructions five and six. Verdict not sustained by the law and evidence.

The motion to quash the indictment states no objection that might have been urged to any of the grand jurors, and was properly overruled.

It is urged that the indictment was demurrable because it did not expressly aver that Jennie Jones was a female. The indictment charges that the appellant feloniously, forcibly, unlawfully and against her consent, did carnally know Jennie Jones. The use of the personal pronoun her,...