An indictment was found against the appel- . lant, charging that he, “ on the 19th day of January, A. D. 1875, at the county of Marion, аnd State of Indiana, did then and there, in a rude, insolent, and angry manner, unlawfully
Motion to quash overruled, and exception.
Trial by jury, conviction, and judgment that defendant pay a fine of one hundred dollars, аnd be imprisoned for the term of two years in the state prison.
The overruling of the motion to quash is assigned for еrror. It will be seen that, in describing the crime which the defendant is charged with having intended to commit, viz., the rape, thе pleader has not used the word “ unlawfully,” which enters into the statutory description of that offence. No еquivalent word is used. Had the word “ feloniously ” been used in describing the intended rape, that would, doubtless, have beеn sufficient, as an act could not be felonious without being unlawful. Weinzorpflin v. The State, 7 Blackf. 186; Sloan v. The State,
There was no motion in arrest of judgment, nor is it assigned for error that the indictment is not sufficient to sustain the judgment. There was no exception tаken to the judgment as rendered. The objection to the indictment is in no way so presented to this court as tо make it available to the appellant.
We proceed to the consideration of other questions arising in the cause.
It appeared on the trial of the cause that the person charged to have been assaulted by the defendant was a female child, between eleven and twelve years of age at the time of the
“ You .will observe that if a person has carnal knowledge of a woman child, under the age of twelve years, he is guilty of rape, whether the carnal knowlеdge was with or without the consent of the child • for the law presumes that a child under the age of twelve yeаrs is not capable of consenting to intercourse, so that a man having connection with her is guilty of raрe, whether it was with her. consent or not.”
The jury must have understood from this charge that if the defendant perpеtrated the assault and battery upon the child, she being under the age of twelve years, with intent to have cаrnal connection with her, he might be convicted of the offence charged, without regard to the questiоn whether he intended to have such connection with or without her consent.
The charge may have been correct as an abstract proposition, but it was clearly wrong as applied to the chargе contained in the indictment. The indictment charges that Mary E. Clayes, the person charged to have been assaulted, was a woman, and that the defendant intended to carnally know her forcibly and against her will. The statute defining and providing punishment for rape provides, that “ every person who shall unlawfully have carnal knowledge of a woman against her will, or of a woman child under twelve years of age, shall be deemed guilty оf a rape,” etc. 2 G. & H. 440, sec. 14. This statute, it will be seen, enumerates two classes of facts, each of whiсh constitutes a rape. First, it is a rape to unlawfully have carnal knowledge of a woman against her will. We take it that all females of the human species over twelve years of age are to be deеmed women within the meaning of the first clause of the statute. Second, it is a rape to unlawfully have carnal knowledge of a woman child under twelve years of age. In the second case, it is immaterial whether thе child consent or not, for if she consent, the act constitutes a rape nevertheless. But the prosecutor cannot charge a rape of the one class, and sustain the charge by proof of a rape of the
There need be no trouble in сases of this kind, as, if there is any doubt about the age of the person assaulted or ravished, the offencе can be charged both ways in different counts.
■ A motion for a new trial was properly made, and should havе been sustained.
There are some other questions made in the cause, but as we suppose they will not bе likely to again arise upon the trial of the defendant upon this indictment, we pass them over.
The judgment below is reversed, and the cause remanded for a new trial. The clerk will give the proper notice for the return of the prisoner.