108 N.W. 485 | N.D. | 1906
An information was filed by the state’s attorney of Ransom county, charging the defendant with the crime of assault with intent to commit rape. The testimony disclosed that the prosecutrix was a married woman 20 years of age, who had been married at the age of 16 and was the mother of two children, and that the defendant at the date of the alleged attempt was under 14 years of age. The court instructed the jury that under the evidence the defendant could not be found guilty of assault with intent to commit rape, and that the only offense for which he could be convicted was a simple assault, and then only upon finding that he knew its wrongfulness. The jury returned a verdict of not guilty, and the state has appealed and assigns error upon the instructions.
The case presents the question of the criminal responsibility of children under 14 years of age. The trial court gave the following instruction, which is assigned as error: “The only felony which the testimony shows the defendant could have intended to commit in this case would be an attempt to commit the crime of rape and under the view the court takes, you are instructed as a matter of law, you can, under no circumstances, find this defendant guilty of this crime, as the law presumes a boy of his age to be incapable of committing the crime of rape and no evidence has been offered to overcome this presumption.” Error is also assigned upon the
In our opinion neither assignment can be sustained. The confusion which existed at common law as to the capacity of children to commit crime, has been removed in this state 'by express statute. Section 8544, Rev. Codes 1905 (section 6814, Rev. Codes 1899) so far as material, reads as follows: “All persons are capable of committing crime except those belonging to the following classes: (1) Children under the age of seven years; (2) children over the age of seven years, but under the age of fourteen years, in the absence of clear proof that at the time of commiting the act or neglect charged against them they knew its wrongfulness.” Under the above section, a child under the age of 7 years is conclusively presumed to be incapable of committing a crime. In this respect it is the same as the common law, both of England and this country. Between 7 and 14, called the dubious age of discretion, the child is still presumed to be incapable, but the presumption is not conclusive. The state may overcome the presumption, but to do so, it must show by clear proof that the accused knew the wrongfulness of the act when he committed it. In the absence of such proof the presumption of incapacity must prevail. The burden is upon the state in such cases to prove knowledge of the wrongfulness of the act as an independent fact. In this respect ■the rule is the same as at common law. Angelo v. People, 96 Ill. 209, 36 Am. Rep. 132; State v. Adams, 76 Mo. 355; Stone v. R. R. Co., 115 N. Y. 109, 21 N. E. 712; Godfrey v. State, 31 Ala. 323, 70 Am. Dec. 494, and cases cited in note.
The foregoing may be said to refer to mental capacity. But the crime of rape, as well as the crime of assault with intent to commit rape, involves a further element, and that is the physical capacity to commit the offense. In England it was accepted as a fact that a child under 14 had not the physical capacity to commit the offense, and it was, therefore, held from an early day that the presumption of incapacity was conclusive. Evidence to show capacity
The record in this case shows that the state offered no evidence to show (1) a knowledge on the part of the defendant of the wrongfulness of the act with which he is charged; or (2) that he had arrived at the age of puberty and was physically able to' accomplish penetration. In the absence of proof of mental and physical capacity, the presumption of incompetency must prevail. The court was right, therefore, in instructing the jury that under the evidence they could not find the defendant guilty of an assault with intent to commit rape. There was no proof of physical ability to consummate the offense of rape. The presumption is controlling, therefore, that he had not reached the age of puberty. Not having the capacity to commit the crime of rape, he could not be
No error was committed in refusing the instruction requested by the state as to the defense of impotency. Whether the request states the law correctly as to an attempted rape by an adult, we need not determine. In such cases, impotency is a defense against the consummated offense. But the courts differ when the charge is an attempt. See Territory v. Keyes, 5 Dak. 244, 38 N. W. 440. In that case it was held that the impotency of a grown man is no defense in a prosecution for assault with intent to commit rape, in the absence of proof that the defendant knew that he was impotent. In such cases there is a presumption of legal incompetency. In the present case there is legal incompetency. The question of impotency is not involved. The question was as to the mental and physical capacity of the defendant. The burden was upon the state to show a legal capacity to commit the crime charged, by proof
Judgment affirmed.