No. 14,096 | Neb. | Jun 22, 1905
Philip Hubert, who will hereafter be called the plaintiff, was convicted in the district court for Lancaster county
The information on which he was tried, omitting the formal parts, reads as follows: “That Philip Hubert, late of the county aforesaid, on the 4th day of August, A. D. 1904, in the county of Lancaster and state of Nebraska, aforesaid, then and there being, did feloniously and unlawfully in and upon one Lilian Harding, a female child under the age of eighteen years, to wit, the age of fifteen years, and previously of chaste character, then and there being, feloniously did make an assault, and her the said Lilian Harding, then and there wickedly, unlawfully and feloniously did carnally know and abuse.” Plaintiff first filed a motion to quash the information; later on demurred to it; thereafter objected to the introduction of any evidence on the part of the state because, as he alleged, the information did not state facts sufficient to constitute a crime; and after conviction, before sentence, he filed a motion in arrest of judgment for the same reason. So it appears that at the outset he objected to the sufficiency of the information, and has at all times kept his objection good. His first contention now is that the information is not sufficient to charge him with the crime of which he was convicted. As counsel for both the plaintiff and the state have given this question the most attention, we will, at the outset, give it our careful consideration.
Section 11 of the criminal code provides: “If any person shall have carnal knowledge of his daughter or sister, forcibly and against her will, every such person so offending shall be deemed guilty of a rape, and shall be imprisoned in the penitentiary during life.” The plaintiff was not prosecuted under this section, therefore it will receive no further consideration, and is quoted only for the purpose of being referred to in the discussion which follows. Section 12 of the criminal code reads as follow^: “If any person shall have carnal knowledge of any other woman or female child, than his daughter or sister, as
The second clause of section 12 provides that, if any male person of the age of eighteen years or upwards shall
“The crime of a person in having ‘carnal knowledge of his daughter or sister, forcibly and against her will,’ as defined in the 4th section of the act of March 7, 1835 (Swan & Critohfield’s Stat. 404), and the crime of a person in having ‘carnal knowledge of any other Avoman or female child than his daughter or sister, as aforesaid, for*224 cibly and against her will,’ as defined in the 5tli section of said act, are distinct and separate offenses, and not merely different grade's of tlie same crime.. In charging the latter crime, it is essential for the indictment to state that the woman or female child upon whom the crime is charged 'to have been committed is not the daughter or sister of the accused.”
In construing our own statutes on this question it was said by Chief Justice Sullivan in Edwards v. State, 69 Neb. 386" court="Neb." date_filed="1903-06-18" href="https://app.midpage.ai/document/edwards-v-state-6655335?utm_source=webapp" opinion_id="6655335">69 Neb. 386:
“Sections 11 and 12 of the criminal code describe three classes of crimes, each of which is totally distinct from the other tAvo. By section 11 it- is declared to be unlaAvful for any person to have carnal knoAvledge of his daughter or sister forcibly and against her will. By the first clause of section 12 the act of having forcible carnal knowledge of any woman or female child, other than a daughter or sister, is denounced as a crime; and by the second clause sexual intercourse with a female child under the age of eighteen years, without force and with her consent, is forbidden. The act charged in the information does not constitute a violation of section 11 nor of the first clause of section 12, because the elements of force and nonconsent are Avanting.”
We are satisfic'd Avith the language above quoted, and believe it is a correct statement of the effect of our statutes. Ho the contention of the state that our statutes describe but one offense, and the facts charged in the information, Avhen viewed in that light, are sufficient to charge the plaintiff with the crime of statutory rape, must fail. In Hall v. State, supra, we said:
“In case it is not averred the act was done with force and against the consent of the prosecutrix, it is essential the information disclose, that the person upon whom the offense was committed, at the time of the assault, was under fifteen years of ago, and that the accused was of the age of eighteen years or over. An information for the. crime of rape under the second clause of the section must*225 charge that the person upon whom the offense was committed as being a female child under fifteen years of age, and the accused as being a male person of the age of eighteen years or over; but where the unlawful intercourse is had forcibly and against the will of the complainant, the prosecution for the offense should be brought under the first part, or clause, of section 12, copied above, and in which case it is unnecessary that the information should disclose the age of the accused, or that of the prosecutrix.”
Again, in Woodruff v. State, 72 Neb. 818, a case of statutory rape, Chief Justice Holcomb, speaking for the court, said:
“The gravamen of the offense charged under the section defining the crime is the unlawful sexual intercourse by a male person over 18 years of age with a female child under the age of consent. In the case at bar, the prosecutrix being over 15 years of age, her alleged previous chastity was put in issue, and evidence was introduced for the purpose of showing she was previously unchaste and as a complete defense to the crime charged.”
If the previous unchastity of the prosecutrix is a complete defense to a charge of statutory rape, it necessarily follows that the fact that the accused is a male person under the age of eighteen years also constitutes a defense to such a charge. So, notwithstanding Avliat the courts in other jurisdictions have held, we are fairly and fully committed to the rules above stated, and no reasons have been given which require us to change them. Judged by these rules, the trial court erred in overruling the plaintiff’s objections to the information.
While we decline to formally consider plaintiff’s other assignments of error, it is proper for us to say that, as Ave read the record, the evidence is insufficient to establish the offense described in the second clause of section 12. The prosecutrix testified positively that the plaintiff accomplished his purpose by force and against her will; that she never consented to the act of sexual intercourse with him; and he testified just as positively that he never had
.It also appears that the state was permitted to introduce evidence of certain acts of the plaintiff, such as the purchase of two cocktails for the officer who arrested him, and certain statements alleged to have been made by him to that officer, none of which corroborated or even tended to corroborate; the evidence of the prosecutrix, or impeach or scredit his own testimony. That this evidence, to which he objected, was prejudicial to him, and an invasion ;? his right to have a fair trial, can hardly be questioned. As has been often said, the charge of rape is one easily :uade, and hard to be defended against. Therefore it is tin; duty of the courts to carefully guard both the rights >f the state and the accused, and see to it that a defendant shall not be convicted by reason of prejudice, and without sufficient competent evidence.
For the foregoing reasons, the judgment of the district court is reversed and the cause remanded for further proceedings according to law.
Reversed.
The following opinion on motion for rehearing was tiled February 8, 1006. Motion overruled:
The attorney general, in behalf of the state, has filed a motion for rehearing in this case, and has urged upon the attention of the court, among other things, two unusually important questions.
1. The first contention is that the court erred in holding that_ section 12 of the statute under consideration describes two classes of crimes, each of Avhich is totally distinct from the other. The law applicable to this question Ave think is correctly stated in United States v. Fero, 18 F. 901" court="E.D. Wis." date_filed="1883-12-15" href="https://app.midpage.ai/document/united-states-v-fero-8123887?utm_source=webapp" opinion_id="8123887">18 Fed. 901:
“Where a statute makes either of two or more distinct acts connected Avith the same general offense, and subject to the same measure and kind of punishment, indictable separately and as distinct crimes when committed by different persons, or at different times, they may, Avhen committed by the same person at the same time, be coupled in one count as constituting one offense.”
It AY'ill be readily seen that the question is of importance in the construction of this statute. If two distinct offenses are defined and punishment provided for in this section, and neither of the tAvo offenses includes the other, then the prosecutor must elect at his peril whether he Avill charge that the act was committed forcibly and against the will of the Avoman assaulted, or that the woman was under the statutory age and the defendant Avas of sufficient age to bring him AAÜthin the provisions of the law. Both of these charges could not be contained in the same count of the information, nor indeed in the same information. If this section of the statute defines but one offense, and prescribes the punishment therefor, then the information may be so draAvn as to support a conviction if the offense has been committed in any one of the Avays defined in the statute. We think the latter construction should be given to this section. The object of the section is to define the crime of rape, and to provide the punishment therefor. At the common law it was necessary to charge
2. The second important contention in the brief upon the motion for rehearing is that it is not necessary in an information for rape to charge either that the crime was committed forcibly and against the avíII of the female assaulted, or that the defendant Avas at the time of the
Overruled.