40 Neb. 320 | Neb. | 1894
Plaintiff in error was convicted of the crime of assault with intent to commit a rape upon one Maggie Holthus, a girl under the age of fifteen years. The prisoner presented a motion for a new trial, which was overruled. Thereupon
It is insisted, in the first place, that the trial court erred in refusing to sustain the motion in arrest of judgment. The information, under which the conviction was had, omitting the verification, reads as follows:
“State op Nebraska,
Nemaha County,
s '
“Of the October term of the district court of Nemaha county, in the year 1893, A. J. Burnham, prosecuting attorney for said county of Nemaha, in the name and by the authority and on behalf of the state of Nebraska, information makes that William Hall, then and there being a male person and over the age of seventeen years, in the said county, and on the 14th day of September, A. D. 1893, in and upon one Maggie Holthus, a female under the age of fifteen years, did then and there violently, unlawfully, and feloniously beat and ill treat, with intent to injure her, the said Maggie Holthus, forcibly and against her will feloniously to ravish and carnally know; contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state of Nebraska.
“A. J. Burnham,
“ County Attorney
The information was framed under the fourteenth section of the Criminal Code, which enacts that “if any person should assault another with intent to commit a murder, rape, or robbery upon the person so assaulted, every person so offending shall be imprisoned in the penitentiáry not more than fifteen nor less than two years.” Section 12 of the same Code declares that “if any person shall have carnal knowledge of any other woman, or female child, than his daughter or sister, as aforesaid, forcibly and against her will; or if any male person, of the age of eighteen years or upwards,
The undisputed evidence shows that the accused was over thirty-one years old and that the complaining witness was under fifteen years of age. The state also introduced upon the trial, evidence tending to establish the material-averments in the information. The court, at the request of the county attorney, gave this instruction:
“2. The court instructs the jury that by the laws of the state a female child under the age of fifteen years is incapable of giving legal consent to an act of sexual intercourse, so that every act of carnal connection with such a child will constitute the crime of rape, whether with or without the consent of such child; and in this ease, if you believe from the evidence, beyond a reasonable doubt, that the defendant assaulted the said Maggie Holthus with intent to. have sexual intercourse with her, as charged in the information, whether with or without her consent, and at the time she was under the age of fifteen years, then the defendant is guilty of an assault with the intent to commit a rapy, and the jury should so find.”
The court, on its own motion, gave the following instruction :
Each of the.-e instructions were at the time excepted to, aiid their giving is assigned as error.
In State v. Wright, 25 Neb., 38, it was held that “the act1 of 1887 fixes the age of consent for a female child at fifteen years, and in effect declares that she is incapable of consenting to the act of sexual intercourse, and that such intercourse with her, when under that age, by a person over eighteen years of age, even with her consent, will constitute rape.”
' The first two points of the syllabus in Davis v. State, 31 Neb., 247, are as follows:
“1. An assault by a male person of the age of eighteen years or upwards, with intent to carnally know a female child under the age of fifteen years, is punishable in this state as an assault with intent to commit a rape.
“ 2. In a prosecution for an assault upon the person of a girl under the statutory age of consent, with intent to commit a rape, it is not necessary to allege and prove that the acts were done against her will. Whether she consented or resisted is immaterial.”
It follows from the decisions from which the foregoing excerpts are taken that no force on the part of the defendant, or resistance on the part of the female, is essential to constitute the crime of rape, or of an assault with intent to 'commit that offense, when it is alleged and proved that
Reversed and remanded.