Whitcher v. State

The opinion of the court was delivered by Hoyt, J. — Plaintiff in error seeks by this appeal to reverse the judgment and sentence of the superior court of Lincoln county, whereby he was convicted of the crime of assault with intent to commit rape, and sentenced therefor. As a first reason for said reversal, plaintiff in error contends that the information does not state facts sufficient to constitute a crime. The information is as follows: “Warren Whitcher is accused by the prosecuting attorney of Lincoln county, State of Washington, by this information, of the crime of an assault with intent to commit rape, committed as follows, to wit: On the 16th day of June, 1890, in the county of Lincoln, in the State of Washington, in and upon one Annie Estabrook, a female of the age of twelve years and more, an assault did make, and 288 her, the said Annie Estabrook, then and there did beat, bruise, wound, and ill treat, with intent her, the said Annie Estabrook, by force and against her will, feloniously to ravish and carnally know, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the laws of the State of Washington,” — and is, we tliink, sufficient. It is true, as contended by the appellant, that the name of the defendant is omitted in the charging part of the information, and, were it not aided by our statute, it would be bad. But thus aided it is good, as a man of common understanding could see therefrom that the acts charged were clearly intended to be so charged as the acts of the person named in the accusing part of the information. The court instructed the jury that, if the person upon whom the attempt was made was under the age of sixteen years, the fact that she consented to the advances made would constitute no defense. This was error. The information charged an assault with force, and to warrant a conviction thereunder an assault with force must be proved. To prove an attempt without force when the charge was of one with force would be a clear variance. Besides, we do not think there can be such a thing as an assault to commit rape where consent is given. It is true that our statute has provided that having carnal knowledge of a female child under age shall be rape. Yet such statute has in no manner changed the definition of “assault.” And we are unable to conceive of a person being assaulted who consents to the acts which, without such consent, would constitute an assault. Fraud in obtaining such consent may operate to make the person perpetrating the fraud liable. But, if so, it is upon the theory that the fraud used is equivalent to force. The legislature could provide that any undue familiarity with the person of a female -under age should constitute an assault with intent 289 to ravish, but it has not done so. And as the law now stands there can be no felonious assault without the facts necessary to constitute a simple assault being elements thereof j and as we think there can be no simple assault without force, and with consent, it follows that there can be no such thing as an assault with intent to commit rape where, without fraud being practiced, consent is given to all the acts relied upon to establish the crime. Other errors were assigned upon the record, but a decision thereof would not aid the lower court upon a new trial, and we shall not therefore discuss them. The judgment and sentence must be reversed, and the cause remanded for a new trial, and it will be so ordered..