63 Vt. 673 | Vt. | 1890
The opinion of the court was delivered by
Our statutory provisions concerning rape are found in No. 63, Acts of 1886. In the first section of this act, provision is made for the punishment of a person over the age of sixteen years who “ ravishes and carnally knows a female person of the age of fourteen years or more, by force and against her will,” or “ unlawfully and carnally knows a female person under fourteen years of age, with or without her consent.” P.
This indictment charges that the respondent with force and arms made an indecent assault upon one Alice M. Taylor, “ with intent her, the said Alice M. Taylor, unlawfully, violently, and against the will of her, the said Alice M. Taylor, feloniously to ravish and carnally know.” It contains no allegation of the age of either person. It appeared in evidence that the respondent was twenty-eight years old, and that the person assaulted was under fourteen. ' The court instructed the jury that it was immaterial whether the girl consented to the attempted intercourse or not.
The respondent contends that the statute which would, have deprived him of the defense of consent if his purpose had been accomplished, does not deprive him of that defense as regards the attempt; and that in the absence of any statutory provision an attempt which is consented to cannot be an assault. This contention is supported by decisions in several States. Smith v. State, 12 O. St. 466 ; 80 Am. Dec. 355; State v. Pickett, 11 Nev. 255 ; 21 Am. Rep. 754. In other States the contrary view lias been taken. Hays v. The People, 1 Hill 351; The People v. McDonald, 9 Mich. 150; Fizell v. State, 25 Wis. 364. But we do not think a determination of this question is necessary to the disposal of the case at bar.
The offence of having carnal knowledge of a female person against her will, is distinct from that of having carnal knowledge of one under the age of fourteen with her consent, although both offences are rape. In the first offence, the question of age is not involved. In the second offence, it is the age of the victim which eliminates the element of consent. On an indictment for committing the ordinary offence, one cannot be convicted of having had carnal knowledge of a person under the prescribed age, with her consent. In an indictment for the latter offence an averment of age is essential. Bonner v. State, 65 Miss. 293 ;
An indictment must be so framed as to apprise the respondent of the charge which is brought against him. This indictment did not inform the respondent that the charge was one wherein the effect of consent might be taken away by proof of age. He might well assume that nothing but proof of consent was necessary to his defense, and so go to trial without any evidence as to the age of the person consenting. Had he been informed by the indictment that the prosecution expected to establish an attempt upon a person below the age of consent, he might have been prepared with evidence upon the further point. So if it were to- be held that one may be punished for an unsuccessful attempt to have carnal knowledge of a female under the age of fourteen years with her consent, we think that on the charge here .made proof that the female was under that age would not relieve the State from showing that the attempt was against her will. As this indictment is framed, it is the age which is immaterial, and not the fact of consent. One may be convicted of rape-proper upon a person under the age of consent, or of an assault with- intent to commit that offence. Vasser v. State, 55 Ala. 264; O'Meara v. State, 17 O. St. 515. There was evidence tending to show that this attempt was by force and against the will, but under the charge of the court the jury was not called upon, to consider it.
Exceptions sustained, and cause remanded for-new trial.
