58 Ala. 376 | Ala. | 1877
The indictment, in the form prescribed, charges that the defendant “ did carnally know, or abuse in the attempt to carnally know,” afemale child under the age of ten years. It is founded on the statute (Code of 1876, § 4306), which reads 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, at the discretion of the jury, either by death, or by imprisonment in the penitentiary for life, or by hard labor for the county for life.” The Circuit Court was of opinion, and so instructed the jury, that the word abuse, as found in the statute, was not the synonym of injure, but signified to forcibly use wrongfiilly. The correctness of the instruction is the only matter presented for consideration.
Bape, as defined by Blackstone, is “ the carnal knowledge of a woman forcibly and against her will.” — 4 Black. 2Í0. A better definition, Mr. Bishop suggests, is, “ rape is the
There cannot be sexual connection between a male capable of committing rape, and a female child, under ten years of age, without injury to the private parts of the child.— Wharton & Dille’s Medical Juris. §432. The statutes to which we have referred are directed against the complete offense — when there is something more than mere outward contact of the genital organs — something which may be called penetration. — Bish. Stat. Crimes, § 494. The offense, then, includes, of necessity, physical injury to the child, and it is this injury the term abuse includes, though it is included also in the words carnally Imoio. Our statute differs from these statutes, and is unlike any to which we have access. It is directed, not only against the offense itself, when complete, but against attempts to commit it, if in the attempt there is abuse of the child. Without any contact of the genital or