Chambers v. State

46 Neb. 447 | Neb. | 1895

Ryan, C.

It is provided in section 12 of our Criminal Code that: “If any male person of the age of eighteen years or upwards shall carnally know or abuse any female child under the age of fifteen years with her consent, every such person so offending shall be held guilty of rape.” The plaintiff in error was convicted in the district court of Douglas county of carnally abusing a female child under the age of five years and was sentenced to imprisonment in the penitentiary for a term of twenty years. On the trial the jury was instructed that “ Carnal abuse does not necessarily mean abuse by sexual intercourse or by attempted sexual intercourse.” In Palin v. State, 38 Neb., 862, it was held that the word “abuse,” in the sense it is used in section 12 of the Criminal Code, is synonymous with “ravish.” In Dawkins v. State, 58 Ala., 376, it was held that“theterm ‘abase’ in the statute punishing carnal knowledge, or abuse in attempting to have carnal knowledge, of a female child under ten years, must be limited in its meaning to injuries to the genital organs in the attempt at carnal knowledge falling short of actual penetration. It was not intended to mean other forcible or wrongful ill-usage such as might support an indictment for assault with intent to ravish.” The language of the Alabama statute, to which reference was made in the above quoted syllabus of the case, was as follows: “Any person who has carnal knowledge of any female under the age of ten years, or abuses such female in the attempt to have carnal knowledge of her, must, on conviction, be punished,” etc. (Alabama Code, 1876, sec. 4306.) Within itself this statute provides that the abuse must be in the attempt to have carnal knowledge of a female, yet, strangely enough, we find that the word “abuse” is often defined as a mere attempt at carnal knowledge, and the case of Dawkins v. State, supra, is cited as authorizing this as a correct general definition of the word. (Vide Desty, American Criminal Law, sec. 135; Rapalje & Lawrence’s Law Dictionary; Bouvier’s Law Dictionary; Black’s Law Dictionary.) The definition adopted in Palin v. State, supra, has, we think, support in authority more satisfactory than those definitions which follow Dawkins v. State. In view of either class of definitions of the word “abuse,” however, the language of the instruction above quoted was without warrant. The judgment of the district court is therefore reversed and the cause is remanded to the district court.

Reversed and remanded.