Territory of Dakota v. Keyes

McCoNNEll, J. The defendant in the court below was tried and convicted under an indictment charging him with the crime of assault with intent to rape a female child under the age of 10 years. Motions for a new trial and in arrest of judgment were made and overruled, and the defendant was sentenced to the penitentiary for the term of three years and six months. The defendant brings the case to this court for review upon a writ of — 248 — error, and makes several assignments of error. We will consider each in the order presented. 1. It is urged that the indictment is not sufficient to charge a public offense. The material part of the indictment complained of, is as follows: “That Edwin H. Keyes, * * * in and upon one Kuby Milliken, then and there being, did make an assault. and her, the said Kuby Milliken, did then and there beat and ill-treat, with intent to commit the felony of rape upon her, the said Ruby Milliken, she, the said Ruby Milliken, then being a female under the age of ten years.” The defendant’s counsel contends, citing several authorities, that an indictment for an assault with intent to commit rape is fatally defective unless it sets out the intended means to effect the crime, to-wit, force, threats, or fraud; that in such cases the use of the word “rape” is not sufficient; that all the elements of the intended offense must be charged. We think, however, that the indictment is sufficient. It was not necessary to allege that the assault was without the consent of the prosecuting witness, for the reason she was under the age of 10 years, and in law could not consent. It was not necessary to allege that the act was done with force, for, the assault being charged, and the female being under the age of 10 years, jorca is necessarily implied. It is not necessary to set out in an indictment more than the ultimate facts required to be proven. Tested by this rule, the indictment is clearly good. Sections 223, 493, 537, Crim. Pro. Dak.; Singer v. People, 13 Hun, 418; Com. v. Sugland, 4 Gray, 7; Com. v. Fogarty, 8 Gray, 489; Fizell v. State, 25 Wis. 364. 2. It is next urged that the evidence does not show an intention on the part of the accused to commit rape. We have examined the evidence, and think that it justified the verdict. The acts of the defendant constituting the assault were before the jury, and, a proper charge from the court having been given, the general verdict was a necessary finding upon this point. The only witnesses for the prosecution were Kuby Mil-liken, the prosecuting witness, and Alice Milliken, her mother, — 249 — •corroborating her by the girl’s statement made to her immediately after the assault, and the further fact that she saw the girl coming from the defendant’s house; the defendant being at the time in the house alone. The only witness for the defense was Dr. Andros, upon the question of defendant’s impotency. The defendant did not avail himself of his privilege of becoming a witness. 3. It is next urged that the trial court erred in allowing Alice Milliken to testify as follows: '‘Question. Did your daughter tell you after she had been at Mr. Keyes’ that Mr. Keyes had taken her upon his lap ? What, if anything, did your daughter tell you in reference to what was done? Answer. She told me as soon as she got home that Mr. -Keyes took her into the house, took her upon his lap, unbuttoned her drawers and his pants, and put his privates with hers.” She also testified that her ■daughter was but nine years of age. This is one of the assignments of error, and is pressed upon us in the brief of defendant’s counsel. In looking at the transcript we find that this question was allowed, and the answer was .given, without objection. Neither was there any motion to strike such testimony from the record. No exception was saved, and we therefore shall not pass upon the question as to the admissibility of such testimony. While it has been held that such testimony is inadmissible, yet our attention has been called to the following authorities holding that such testimony is proper, especially where the injured party is a girl of tender years. “The particulars of the statements made by the complainant witness cannot be given in evidence, except in a case where the person ravished is very young.” Hannon v. State, (Wis.) 36 N. W. Rep. 1; People v. Gage, (Mich.) 28 N. W. Rep. 835; State v. De Wolf, 8 Conn. 93; State v. Byrne, 47 Conn. 465; Phillips v. State, 9 Humph. 246; State v. Mitchell, 89 N. C. 521. 4, 5. It is next urged that the court erred in not allowing Kuby Milliken, the prosecuting -witness, to answer the following «question, put to her by the defendant’s counsel: “Did you stay — 250 — with Mr. Keyes that time because you wanted to?” We will, consider this in connection with the fifth assignment of error, relating to the charge of the court upon the question of consent.. The charge of the court complained of is as follows: “This defendant stands charged in this court of the crime of assault with intent to commit rape. The indictment charges that the age of' the child upon whom this assault is alleged to have been committed, is under the age of ten years. This is an essential allegation of the indictment, because, under the wise provision of law which is enacted for the benefit of society and mankind, no-child under the age of ten years is in law capable of giving consent. A man who has intercourse or attempted intercourse with a child under the age of ten years, which may be so far perfected that there is the slightest penetration, is guilty of rape in the first degree. A man who intends to have any carnal connection with a child under the age of ten years, and does any act towards that sufficient to make an assault, is guilty of an assault with intent to commit rape, even though the child consents. There can be no consent in law. You will readily understand the wise provision of such a law. In this case I charge you that, if you find that this defendant attempted intercourse-with this child, even though she consent, he is guilty of an assault with an attempt to commit a rape, under the statute.” ■ The question here involved has frequently been before the-courts both of England and this country, and, while the English courts have almost uniformly held that consent is no defense-to the substantive crime when the child is under the age of i(h years, it must be conceded that those courts, prior to act of parliament in 18S0, almost invariably held that consent of such child is a good defense to the charge of assault with intent to-commit the crime. As to the principal crime the decisions of the courts of this country are in harmony with those of England, but as to the incipient crime there is a decided conflict.. The difference of opinion in the courts upon this point has arisen from the different answers given by the respective courts to the-following question: Can there be an assault, us a matter of law,. — 251 — when there is formal consent, and the substantive crime is not accomplished? When it is remembered that the completed offense is but a continuation or aggravation of the felonious assault in law, and it being conceded by all that, when accomplished, the child’s consent does not eradicate the assault in law, by what principle of law, logic, or reasoning can it be maintained that such consent eradicates the assault in law, as to the incipient crime ? Though the child formally and apparently consent, nay, even though she solicit the act, yet in reality and in law. it is no consent. Therefore we think that the trial court was right in excluding the evidence as to whether or not the child consented, and that there was no error in the charge to the jury upon the question of consent. Hays v. People, 1 Hill, 351; Singer v. People, 13 Hun, 418; State v. Johnson, 76 N. C. 209; Oliver v. State, 54 N. J. Law, 46; Fizell v. State, 25 Wis. 369; People v. McDonald, 9 Mich. 150; Mayo v. State, 7 Tex. App. 342; Com. v. Roosnell, (Mass.) 8 N. E. Rep. 747; People v. Gordon, (Cal.) 11 Pac. Rep. 762; Whart. Crim. Law, (8th Ed.) § 577. The cases in this country in conflict with this doctrine are: Smith v. State, 12 Ohio St. 466; Stephens v. State, (Ind.) 8 N. E. Rep. 94; State v. Pickett, 11 Nev. 255; Garrison v. People, 6 Neb. 274. Also, Bish. St. Crim. §§ 498, 499. In Smith v. State, supra, Judge Peck says : “Two things must concur to authorize a conviction under the 17th section: there must have been an assault, coupled with an intent to commit a rape upon the person assaulted. An assault implies force upon one side, and repulsion, or at least want of assent, upon the other. An assault, therefore, upon a consenting party, would seem to be a legal absurdity.” In that case Judge Brinicerhoee dissented, on the ground of the reasoning of the court in Hays v. People, supra. In Stephens v. State, supra, Judge Niblacx says: “The question as to whether a female child under the age which disqualifies her from assenting to sexual intercourse may so far consent to the taking of improper and indecent liberties with her person as to relieve such liberties of — 252 — their unlawful and indictable character, is one which has received some attention both in England and in this country, but is a subject upon which the authorities are not numerous, and are very considerably in conflict. But the difference between the statutes or systems of jurisprudence upon which some of the decided cases rest is sufficient to account for the conflicting conclusions respectively reached by them.” In that case Judge Elliott dissented. 6. The next point urged by counsel for plaintiff in error is as to the court’s charge to the jury upon the subject of impotency. That part of the charge complained of is as follows: “I charge you as a matter of law that impotency in a case of this kind— that is, an assault to commit rape — is no defense, at least unless it be coupled with the further proof that the defendant himself knew of that impotency; then it might be admissible in evidence to go to the question of intent, but no further.” As to the correctness of the rule of law as stated in this instruction, there is a conflict in the authorities; some of them holding that impotency is a valid defense to a charge of an assault with intent to commit the crime of rape. We think, however, that the rule as stated in this instruction is the better doctrine. The essence of the crime is the outrage of the person and feelings of the female. The feelings of a woman may be outraged by the force and brutality of a man who is impotent as as well as of a man who is not. “The essential guilt of rape consists in the outrage of the person .and feelings of the female. * * *” Section 322, Pen. Code Dak. “An assault is any willful and unlawful attempt or offer, with force or violence, to do a corporal hurt to another.” Section 305, Id. As an assault, as defined by our Code, does not imply an ability to consummate the attempted act, impotency cannot be a defense to the charge of an assault with intent to commit the crime of rape. “Impotency is undoubtedly a sufficient defense to an indictment for the consummated offense, though not for an assault with intent.” 1 Whart. Crim. Law, (8th Ed.) § 552; 1 Bish. Grim. — 253 — Law, §§ 737, 738; Barb. Crim. Law, 114; Com. v. Green, 2 Pick. 380; Kunkle v. State, 32 Ind. 231. 7. The next point urged is in reference to the court’s charge: “Should this court make errors, it will not only be ready this to correct, but there stands a higher court above that will protect the rights of the defendant.” We do not think there was any error in this portion of the charge. Even if there was, we cannot see that the defendant was prejudiced thereby. Young v. Harris, (Dak.) 32 N. W. Rep. 97; Territory v. Chartrand, 1 Dak. 379; U. S. v. Adams, 2 Dak. 305; Spencer v. Toser, 15 Minn. 146, (Gil. 112;) Laurel v. State Nat. Bank, 25 Minn. 48; Vicksburg & M. R. R. Co. v. Putnam, 118 U. S. 553, 7 Sup. Ct. Rep. 1. There being no error in the record, the judgment of the district court is affirmed. All the justices concurring, except Francis, J., who dissents.