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SS 478, 479. Introduction.

480-482. Statutory modifications of rape
483-491. Statutory carnal abuse.
492-499. Attempts.

$ 478. Common-law and statutory rape, distinguished.The offense of rape, as an English author would view it, is, at least in part, statutory. But the early statutes are old, and they are common law with us; so that, when we speak of common-law rape, we mean rape as defined by them."

$ 479. Elsewhere - Here - How chapter divided.- Rape and carnal abuse, as common-law offenses within this distinction, are treated of in “Criminal Law” and “Criminal Procedure." We shall here consider the American statutes and their effect as to: I. Statutory modifications of the common-law rape; II. The statutory carnal abuse of children; III. Attempts.

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I. STATUTORY MODIFICATIONS OF THE COMMON-LAW RAPE. $ 480. Generally - Against will ” -“ Not consent.”_ Generally our statutes against rape are in the terms of those old English ones which are common law with us. So that the offense under them does not differ from the common-law rape.' Still they oftener have the words “ against her will ” than the old statutory expression “where she did not consent,” — a distinction explained in “Criminal Law.” When they have, probably the indictment ought to contain, as in practice it commonly does, the same words, “ against her will," instead of “without her consent,” 5 a question explained in “Criminal

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1 Crim. Law, II, § 1108.

4 Crim. Law, II, SS 1108-1115. In 2 Crim. Law, II, § 1107 et seq.; Texas the statutory expression is Crim. Pro., II, § 947 et seq.

“without her consent.” Williams v. 3 Ante, & 471; Com. v. Sugland, 4 S., 1 Tex. Ap. 90, 91, [28 Am. R. 399.) Gray, 7; Anderson v. S., 34 Ark. 257. 5 And see Anderson v. S., supra;

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Procedure.?! For though the former are a permissible substi1

a tute for the latter,” it is not so plain that the latter are such for the former.3

$ 481. “ Daughter or sister,” or “other woman," distinguished.- An Ohio statute made it, in one section, rape, and punishable in a particular way, for a man to have "carnal knowledge of his daughter or sister, forcibly and against her will;” and, in the next section, rape, punishable less heavily, to have “carnal knowledge of any other woman, or female child, than his daughter or sister as aforesaid, forcibly and against her will.” And the court observed that here “are distinct and separate crimes, and not merely different grades of the same crime;" adding, and apparently holding, that, “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." 5 Whether this decision is sound or not, certainly not all tribunals will follow it. For it is a principle pervading the entire criminal law, that the prosecuting power can call an offender to account or not, or take notice of a particular element of his wrong or not, as it chooses. So that, where the injured female is the “daughter or sister,” the grand jury is not compellable to take notice of the fact. They may

. frame the indictment as though she was not, and the conviction will be for the milder offense. For a defendant cannot escape by showing that he is more guilty than he is charged with being. Then, where the woman is not the "daughter or sister," this fact is simply matter of defense against the higher charge. And it is a rule of criminal pleading that matter of defense, though inserted in a statute, need not be negatived in the indictment thereon. Within this principle,$ 482, Age.- Where a statute makes punishable any per

who shall ravish and carnally know any female of the age



Greer v. S., 50 Ind. 267, [19 Am. R. 4 Swan, Stats. 269; Warren, Crim. 709;] S. v. Erickson, 45 Wis. 86; (Lan- Law (3d ed.), 246, gan v. S., 27 Tex. Ap. 498, 11 8. W. R. 5 Howard v. S., 11 Ohio St. 328. 621.]

[Contra, Jones v. S., 54 Ohio St. 1, 42 Crim. Pro., II, SS 949, 951.

N. E. R. 699.] 2 Id., $ 951.

6 Crim. Law, I, SS 784, 786, 791 et 3 Crim. Law, II, § 1114 and note. seq.

7 Crim. Pro., I, SS 614–618, 638.

of ten years or more by force and against her will, or shall unlawfully and carnally know and abuse any woman child under the age of ten years,” an indictment which is silent as to the age is good under the former clause. And, as general doctrine, the female's age in rape, not speaking of the carnal abuse of a woman child, need not be averred. Nor, indeed, though she is below the statutory age, is the forcible ravishment of her the less rape. Nor need the age of the defendant be set out, though the statutory words are “any person of the age of fourteen years and upward, who shall have carnal knowledge.” If he is below fourteen, it is simply matter for defense.


$ 483. Elsewhere.— In “Criminal Law” we saw what is the common law on this subject."

$ 484. Incapacity for consent in rape.- Some of our American courts, deriving from nature and from our common law (which, we saw elsewhere, rests on early English statutes) the doctrine that a girl under ten (or possibly under twelve") is incapable of consenting to the carnal act, have held it to be rape, in the ordinary sense, for a man to have carnal intercourse with such a girl, though outwardly, and in the common meaning of the expression, she consents. And they have even permitted the jury to infer, from an exceptional want of physical development at a somewhat greater age, the like incapacity, with the like consequence. On this question, we have the analogies


1 Com. v. Sugland, 4 Gray, 7; [S. v. 29 Cal. 575, 576; Com. v. Scannel, 11 Gaul, 50 Conn. 578; Nicholas v. S., 23 Cush. 547; [Mitchell v. P., 24 Col. 532, Tex. App. 317, 5 S. W. R. 239.] 52 Pac. R. 671; S. v. Sullivan, 68 Vt.

2 Crim. Pro., II, & 954; [S. v. Had- 510, 35 Atl. R. 479; Wood v. S., 12 don (S. C.), 27 S. E. R. 194; McLaugh- Tex. Ap. 174.] lin v. Com. (Ky.), 35 S. W. R. 1030; 5 Crim. Law, II, § 1133. Cornelius v. S., 13 Tex. Ap. 349; P. v. 6 Id., SS 1108–1115, 1133. Draper, 28 Hun, 1.]

? (S. v. Miller, 42 La. An. 1186, 8 S. 3 Crim. Law, II, § 1118; Reg. v. R. 309, 21 Am. St. R. 418.] Dicken, 14 Cox, C. C. 8; S. v. Wor- 8 Stephen v. S., 11 Ga. 225, 238; den, 46 Conn, 349; S. v. Storkey, 63 Gosha v. S., 56 Ga. 36; Joiner v. S., 62 N. C.7; O'Meara v. S., 17 Ohio St. 515; Ga. 560, 562; McMath v. S., 55 Ga. 303; Charles v. S.,6 Eng. 389; Reg. v. Neale, S. v. Tilman, 30 La. An. 1240, [31 Am. 1 Car. & K. 591; Vasser v. S., 55 Ala. R. 236:] Dawson v. S., 29 Ark. 116, 264.

120; Williams v. S., 47 Miss. 609, 612; 4 Crim. Pro., II, 8 954; P. v. Ah Yek, Anschicks v. S., 6 Tex. Ap. 524. See


of the law which makes it rape to penetrate a woman too profoundly asleep or insane to give consent.' But the indictment on those English statutes, parts of our common law, which punished the carnal knowledge of consenting girls, was distinct from that for ordinary rape, and it charged that the girl was below the age, for example, of ten years. One cannot well see how, from such a source, can be drawn the doctrine that, in point of law, the child is incapable of consenting in ordinary rape, under another statute. All will recognize the fact that, as an intellectual and moral process of the mind and will, she may consent, though the prompting may be something else than lust. Therefore the better doctrine in principle is believed to extend no further than as stated in another place, that, in rape proper, less positive opposition will be required from an immature girl than from an adult.

$ 485. Our statutes — (Name of offense).- Most of our statutes either include the carnal abuse of female children under the name of rape,” or so connect it in a single sentence with rape proper that the courts call it by this name. Specimen enactments are: “If any person carnally know a female of the age of twelve years or more, against her will, by force, or carnally know a fernale child under that age, he shall be, at the discretion of the jury, punished by death, or confined in the penitentiary not less than ten nor more than twenty years.” “Every person who is convicted, in due course of


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Reed's Ga. Crim. Law,332–334; (Jones 17 Cox, C. C. 554; Reg. v. Wealand, v. S. (Ga.), 34 S. E. R. 174; Davis v. S., 16 Cox, C. C. 402; Reg. v. West, 1 31 Neb. 247, 47 N. W. R. 854; S. v. Q. B. 174; Reg. v. Paul, 17 Cox, C. C. Houx, 109 Mo. 654, 19 S. W. R. 35, 32 111; Reg. v. Bostock, 17 Cox, C. C. Am. St. R. 654.)

700; Reg. v. Tyrrell, 17 Cox, C. C. 1 Crim. Law, II, SS 1121-1123.

716.] 2 3 Chit. Crim. Law, 814, 815. Still, 3 Crim. Law, II, § 1124 the statute which made punishable 4 P. v. Special Sessions, 18 Hun, 330, the carnal act with a woman-child 332; Reg. v. Woodhurst, 12 Cox, C.C. was simply silent as to the consent. 443. It is 18 Eliz., ch. 7, § 4,—"carnally 58. v. Johnston, 76 N. C. 209; Mayo know and abuse any woman-child v. S., 7 Tex. Ap. 342; Mosely v. S., 9 under the age of ten years." Crim. Tex. Ap. 137; Givens v. Com., 29 Law, II, § 1112. [For the Criminal Grat. 830; Greer v. S., 50 Ind. 267, (19 Law Amendment Act, 1885 (48 and Am. R. 709;] Lawrence v. Com., 30 49 Vict., ch. 69, 8 5), in relation to Grat. 845. carnal knowledge, see Reg. v. Will.

6 Givens v. Com., supra. iams, 1 Q. B. 320; Reg. V. Waite,


law, of ravishing and carnally knowing any female of the age of ten years or more, by force and against her will, or who is convicted in like manner of unlawfully and carnally knowing and abusing an; female child under the age of ten years, shall suffer death.” 1 The statutes differ, as do these two, in some making the age ten and others twelve. And there are some

. other differences. The punishments are not generally so heavy as the above.

$ 486. Indictment.- One cannot be convicted of this offense on an indictment in the ordinary form as for a rape on an adult. There must be an allegation of the age, which means the age at the time of the commission of the offense, not at the time of the finding of the indictment.* Such averments as “with force," "against her will,” and “ravish" are unnecessary;' though, if inserted, they may be treated as surplusage. In other respects the statutory words should be pur

18. v. Dancy, 83 N. C. 608. [See sent, unchastity, or defendant's inBlanks v. Com. (Ky.), 48 S. W. R. 161.) tention not to use force, be received.

2 Greer v. S., 50 Ind. 267, (19 Am. R. P. v. Knight (Cal.), 43 Pac. R. 6; P. v. 709;] Vasser v. S., 55 Ala. 264. And Rangold, 112 Cal. 669, 44 Pac. R. 107; see Williams v. S., 1 Tex. Ap. 90, [28 P. v. Roach (Cal.), 61 Pac. R. 574; S. Am. R. 399; Warner v. S., 54 Ark. V. Ernest, 150 Mo. 347, 51 S. W. R. 660, 17 S. W. R. 6; Bonner v. S., 65 688; S. v. Duffey, 128 Mo. 549, 31 S. W. Miss. 293, 3 S. R. 663. But there may R. 98; P. v. Goullette, 82 Mich. 36, 45 be a joinder of two counts in the N. W. R. 1124; P. v. Schoonmaker, 117 same indictment for the two of. Mich. 190, 75 N. W. R. 439; S. v. fenses, or the two offenses may even Bowser, 21 Mont. 133, 53 Pac. R. 439; be joined in one count. Nicholas v. Myers v. S., 54 Neb. 297, 74 N. W. R. S., 23 Tex. Ap. 317, 5 S. W. R. 239; 605; Proper 1. S., 85 Wis. 615, 55 N. Sharp v. S., 15 Tex. Ap. 174; Taylor W. R. 1035; S. v. Frazier, 54 Kan. 719, v. S., 24 Tex. Ap. 299, 6. S. W. R. 42; 39 Pac. R. 819; Gonzales v. S. (Tex. S. v. Houx, 109 Mo. 654, 19 S. W. R. Cr. R.), 31 S. W. R. 371; Rodger v. S., 33, 32 Am. St. R. 686.]

30 Tex. Ap. 510, 17 S. W. R. 1077; 3 Ante, 8 484; Com. v. Sugland, 4 Exon v. 8. (Tex. Cr. R.), 33 S. W. R. Gray, 7; Mosely v. S., 9 Tex. Ap. 137; 336; Buchanan v. S. (Tex. Cr. R.), 52 Rex v. Wedge, 5 Car. & P. 298; Reg. S. W. R. 769; Coates v. S., 50 Ark. 330, v. Nicholls, 10 Cox, C. C. 476; S. v. 7 S. W. R. 304; S. v. McCaffrey, 63 Storkey, 63 N. C. 7; O'Meara v. S., 17 Iowa, 479, 19 N. W. R. 331; Com. v. Ohio St. 515; Reg. v. Martin, 9 Car. Murphy, 165 Mass. 66, 42 N. E. R. 504, & P. 215. See Reg. v. Shott, 3 Car. & 52 Am. St. R. 496, 30 L. R. A. 734; K. 206; Bowles v. S., 7 Ohio (2d pt.), Porter v. P., 158 Ill. 370, 41 N. E. R. 243.

886; S. v. Smith, 9 Houst. 588, 33 Atl. 4 Monoughan v. P., 24 III. 340.

R. 441.) 58. v. Black, 63 Me. 210; S. v. Smith, 6 McComas v. S., 11 Mo. 116. And Phillips (N. C.), 302; 8. v. Jarger, 66 see S. v. Erickson, 45 Wis. 86; (S. v. Mo. 173. (Nor will evidence of con- Horne, 20 Oreg. 485, 26 Pac. R. 665;

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