43 Neb. 30 | Neb. | 1894
This is a petition in error to review a judgment of the district court for Dawson county, whereby the plaintiff in error was convicted of an assault with intent to commit the crime of rape upon May Elliott, a female child under fifteen years of age. The evidence of the state, which was not controverted at the trial, is to the effect that the child above named, under nine years of age, on the night in question, with permission of her mother, attended a masquerade ball in the village of Cozad. During the evening she danced several times with the prisoner, who is shown to have been somewhat intoxicated. When she started to leave the dancing hall, about midnight, the prisoner offered to accompany her home, a few rods distant. On the way
The facts stated prove the commission of an assault and battery, — a most disgusting and atrocious wrong to the person of the child named in the indictment. But it is contended by counsel for the prisoner that they are insufficient to warrant the jury in finding the existence of the specific intent essential to a conviction for the crime charged. It should be remembered in this connection that the child assaulted was in a legal sense incapable of consenting to the carnal act, hence the prisoner, if he intended at the time of the assault to carnally know or abuse said child, is guilty of all of the elements of the crime charged. (Davis v. State, 31 Neb., 247.) It is elementary law that the assault and the specific intention in all such cases must concur in point of time, and must be accompanied by an act or acts in some manner adapted to the accomplishment of the thing intended. In this case the acts of the prisoner were not only well adapted to the purpose alleged, but are of such a character as to satisfy us that his intention was to consummate
Another contention is that the prisoner was intoxicated to such a degree that he was incapable of forming the intention essential to the crime of rape in this instance. That •question was fairly submitted to the jury by instructions which advised them that while drunkenness is in general no excuse for crime, the evidence thereof should be considered for the purpose of determining whether the prisoner was at the time of the assault capable of entertaining the specific intent charged. In that there was not error (see Hill v. State, 42 Neb., 502, and authorities cited), and the evidence fully sustains the finding of the jury. There are other errors alleged in the giving of instructions, but as the charge on the branch of the case to which they apply was more favorable to the prisoner than he was entitled to, it follows that the exceptions are without merit. There is no error in the record prejudicial to the prisoner, and the judgment is
Affirmed.