41 Tenn. 351 | Tenn. | 1860
delivered the opinion of the Court.
The only question- presented in the case is, whether the facts constitute the offense created by section 4615 of the Code.
After giving the common law definition of rape in the 4610th section, and in the next section prescribing the punishment of rape upon “a female of ten years and upwards,” it is then provided, in sec. 4610, that “any person who shall unlawfully and carnally know and abuse a female under the age of ten years, shall, on conviction, be punished as in cases of rape.” To constitute rape, the carnal knowledge must bo “forcible, and against the will.”
This only applies to females of ten years and upwards. But, if under ten, it need not be forcible and against the will. This, .though not rape, is a felony. But in both cases, there must be carnal knowledge. The section now under consideration, and on which the indictment is based, creates another and different felony, in which the object designed is not accomplished. It requires two elements to constitute it: an act with a certain intent. An assault and battery must be committed on a female with intent to know her “forcibly against her will.” It is difficult to conceive how any sane man could have this intent, in reference to a child of four years old. But this defendant was not drunk, and it is said, may have had such a purpose in that condition. If he had, though it was impracticable to have accomplished his object, and carried out his unholy
The little girl was not injured, nor did her person indicate that any attempt had been made to violate her, though he carried her off into the smoke-house, and the appearance of her clothes was suspicious, when detected. His foolish and extremely improper and sense
Reverse the judgment and remand the cause for a new trial.