ÆäÀÌÁö À̹ÌÁö
PDF
ePub

AGGRAVATED ASSAULT.-When conviction of an assault upon a woman, and it is found that defendant was over eighteen years of age, he may be punished for an aggravated assault, whether his age is stated in the indictment or not. Smith, 157-578; 72 S. E. 853.

Upon conviction of a simple assault and battery upon a woman, without alleging an attempt to commit rape, the defendant, over the age of eighteen years, can be punished at the discretion of the court. Smith, 157-578; 72

S. E. 853.

When an indictment charges an assault with intent to commit rape, the prisoner may be convicted of an assault upon a woman. Smith, 157-578; 72 S. E. 853.

AGE. It is for the defendant to show that he was under the age specified in order to except his case from the proviso. Smith, 157-578; 72 S. E. 853. It is not necessary that the bill state that defendant was over eighteen years of age. Smith, 157-578; 72 S. E. 853.

JURISDICTION.-It is not necessary to show affirmatively the jurisdiction of the superior court, when that court and a justice's court have concurrent jurisdiction, for it is for defendant to show as matter of defense that justice had taken jurisdiction. Smith, 157-578; 72 S. E. 853.

CONVICTION OF LESS OFFENSE.-Under a bill of indictment for rape the lesser offense of assault and battery may be found to have been committed. Smith, 157-578; 72 S. E. 853.

When lesser offense of assault and battery is found to have been committed a special issue may be submitted to the jury, so that, in accordance with the jury's finding, the court may determine the grade of punishment. Smith, 157-578; 72 S. E. 853.

INTENT. The charge in a bill of indictment of an assault and an attempt to ravish necessarily includes the charge of intent, and when the bill is otherwise sufficient it is not defective because it omitted to expressly charge the intent. Hewett, 158-627; 74 S. E. 356.

4. INFANTS.

INFANTS UNDER FOURTEEN CAN NOT COMMIT RAPE.-An infant under the age of fourteen years can not commit rape, nor be guilty of an assault with intent to commit rape. Sam, 60 (Winst. Law), 300.

BURDEN OF PROOF.-Where infancy is relied on as a defense, the burden is on the defendant to show that he was under fourteen years of age. MeNair, 93-628.

APPEARANCE OF PRISONER.-The jury may look on the prisoner and judge from his appearance whether he was fourteen years of age when the alleged offense was committed. McNair, 93-628.

5. SILENCE OF PROSECUTRIX.

The inference arising against the truth of a charge of rape from a long silence on the part of the female, is not a presumption amounting to a rule of law, but is a matter of fact to be passed on by the jury. Peter, 53 (8 Jones), 19.

The silence, or failure of the female to make outcry immediately after the commission of the offense, is a circumstance tending to show consent on her part, or to impeach her credibility as a witness, the presumption being that a forcible violation of her person so outrages the female instinct that a woman,

.

not only will make an outcry for aid at the time, but will instantly, after its perpetration, seek some one to whom she can make known the injury and give vent to her feelings. Peter, 53 (8 Jones), 19.

The fact that the prosecutrix followed the prisoner into the woods is not conclusive evidence of consent. Marshall, 61-51.

The fact that prosecutrix did not tell her aunt whom she met soon after the commission of the crime does not entitle the defendant to an instruction that her testimony is to be disregarded. Marshall, 61-51.

It is competent for the prosecutrix to testify that immediately after the alleged assault she told her husband and two other persons. Stines, 138— 686; 50 S. E. 851.

It is the duty of the state, if it can do so, to show that the prosecutrix made outery shortly after the occurrence. Stines, 138-687; 50 S. E. 851. But a request to charge that the failure of the prosecutrix to make outery was "strong" evidence to discredit her is properly modified by omitting the word strong, it being for the jury to determine what weight they will give it. Smith, 138-700; 50 S. E. 859.

6. RAPE OF CHILD.

Sec. 972 (3348). Carnal knowledge of virtuous girls between ten and fourteen years of age.

If any person shall unlawfully carnally know or abuse any female child over ten and under fourteen years of age, who has never before had sexual intercourse with any person, he shall be guilty of a felony and fined or imprisoned in the state's prison, in the discretion of the court.

1895, c. 295.

PUNISHMENT.—Unlawfully to carnally know and abuse a female under the age of ten years constitutes the crime of rape, and one convicted of such crime may be punished by imprisonment in the penitentiary. Dancy, 83— 508.

INDICTMENT-PROOF.-An indictment for an assault with intent to commit a rape is supported by proof of an assault with intent to unlawfully and carnally know and abuse a female child under ten years of age, though the indictment says nothing about the age. Johnston, 76-209.

INTENT. An indictment which alleges that defendant "did make an assault and did then and there unlawfully attempt to carnally know" the female child, is fatally defective for failure to charge the intent with which the assault was made. Golston, 103-323; 9 S. E. 580.

WHEN AGE MUST BE STATED.-Where the indictment simply charges that the act was with force and against the will of prosecutrix, but fails to state that she was under ten years of age, a charge that the prisoner is guilty if he had unlawful and carnal knowledge of prosecutrix, she being at the time under ten years of age, whether she consented or not, is erroneous. When the act is with the child's consent, her age must be given in the indictment. Johnson, 100-494; 6 S. E. 61.

MAN AND WOMAN GUILTY.-A man and a woman are both guilty of abusing and carnally knowing a female child where both caused the child to become drunk and the man had intercourse with the child while the woman held her. Hairston, 121-579; 28 S. E. 492.

EVIDENCE-FORMER CONDUCT OF PROSECUTRIX.-On trial of an indietment for rape of a child twelve years of age it was not error to refuse to permit a witness to state that the prosecutrix had proposed to have sexual intercourse with him, when defendant did not propose to show that the witness had actually had intercourse with her. Hairston, 121-579; 28 S. E. 492.

CHARGE. Where an indictment contained two counts, one for rape and the other was abusing and carnally knowing a female child, and defendant was convicted of the lesser offense, he can not complain that the judge stated to the jury that the punishment for rape was death and for the other offense imprisonment only. Hairston, 121-579; 28 S. E. 492.

NOT NECESSARY TO ALLEGE RAVISHMENT.-It is not necessary to allege that the prisoner ravished the child. Smith, 61–302.

DEPTH OF PENETRATION.-While actual penetration is necessary no particu lar depth of penetration is required. Smith, 61-302.

CONSTRUCTION OF STATUTE. The comma after the word "knowing" in the sentence: "And every person who is convicted of unlawfully and carnally knowing, abusing any female child," etc., can not be construed to mean "or." Monds, 130-699; 41 S. E. 789.

ABUSE OF GENITAL ORGANS.-It is error to charge that the crime would be complete "if the jury should find that the defendant injured and abused her genital organs."/ Monds, 130-697; 41 S. E. 789.

CORROBORATION.-Where the cross-examination tends to impeach the prosecutrix it is competent for the state to prove a declaration made by her soon after the assault to corroborate her. Brown, 125-606; 34 S. E. 105.

PUNISHMENT.-A sentence of ten years in the penitentiary for carnally knowing and abusing a female between ten and fourteen is not unlawful. Rippy, 127-516; 37 S. E. 148.

Sec. 973. Audience may be excluded.

That in the trial of cases for rape and of assault with the intention to commit rape, the trial judge may, during the taking of the testimony of the prosecutrix, exclude from the court-room all persons except the officers of the court, the defendant and those engaged in the trial of the case; and upon the preliminary hearing before a justice of the peace of the offenses above named, that officer may adopt a like course.

1907, c. 21.

Sec. 974 (3699). Rape and buggery; proof.

It shall not be necessary upon the trial of any indictment for the offenses of rape, carnally knowing and abusing any female child under ten years of age, and buggery, to prove the actual emission of seed in order to constitute the offense, but the offense shall be completed upon proof of penetration only.

Code, s. 1105; 1860-1, c. 30.

7. ASSAULT WITH INTENT TO RAPE.

Sec. 975 (3638). Rape, assault with intent to commit.

Every person convicted of an assault with intent to commit a rape upon the body of any female, shall be imprisoned in the state's prison not less than five nor more than fifteen years.

Code, s. 1102; 1868-9, c. 167, s. 3; R. C., c. 107, s. 44; 1823, c. 1229.

NOT NECESSARY TO ALLEGE THAT THE PRISONER WAS A MALE.-On indictment of a person of color for an assault with intent to commit rape, it is not necessary to allege that the accused is a male person. Tom, 47 (2 Jones), 414.

NOT NECESSARY TO ALLEGE THAT THE PROSECUTRIX IS OF THE HUMAN SPECIES. It is not necessary, in an indictment for an assault with intent to commit rape, to allege that the female assaulted was of the human species. Tom, 47 (2 Jones), 414.

CHARGING "INTENTION" INSTEAD OF "INTENT."-An allegation that the assault was made with an "intention" to ravish instead of an "intent" is sufficient. The formality is cured by section 262 (The Code, sec. 1183). Tom, 47 (2 Jones), 414.

JURISDICTION.-The superior court has jurisdiction to proceed to judgment where the indictment charges an assault with intent to commit rape, though the jury convict of the assault only. Reaves, 85-553.

PUNISHMENT.-Where the indictment charges an assault with intent to commit rape, and defendant submits for a simple assault, the superior court may pass sentence, but can not imprison defendant for longer than thirty days, nor fine him more than fifty dollars. Johnson, 94-863.

PUNISHMENT ON CONVICTION FOR SIMPLE ASSAULT WITHOUT INJURY.— Where, on indictment for assault with intent to commit rape, the conviction is for a simple assault, and there is no evidence that the prosecutrix suffered from bodily pain at all, the punishment can not exceed a fine of fifty dollars or imprisonment for thirty days. Nash, 109-824; 13 S. E. 874.

INTENT MUST BE CLEARLY SHOWN.-The intent is a question of fact for the jury and not for the court, and is a material and essential ingredient of this offense and must be established beyond a reasonable doubt. DeBerry, 123-703; 31 S. E. 272.

WHAT NECESSARY TO CONVICT.-To convict one charged with an assault with intent to commit rape, the evidence must show not only an assault but an intent on the part of the defendant to gratify his passion on the person of the woman, notwithstanding any resistance she might make. Jeffreys, 117743; 23 S. E. 175.

INDICTMENT.—An indictment for assault with intent to commit rape which charges that defendant "feloniously did make an assault and her the said S then and there did beat, wound and ill-treat, with intent her the said S feloniously and willfully carnally to know and abuse," is fatally defective for failure to use words indicating that the intent was to be executed violently and against the will of the prosecutrix. Powell, 106-635; 11 S. E. 191.

The omission of the word "feloniously" in the indictment is a fatal defect. Scott, 72-461,

HUSBAND AND WIFE.-A husband who, by presenting a loaded gun at the parties and threatening to kill them in case of refusal, compels his wife to

submit to, and a man to attempt, sexual connection, is guilty of an assault with intent to commit rape on his wife. Merrimon, J., dissenting. Dowell, 106-722; 11 S. E. 525.

CONSENT OF FEMALE ON CONDITION.-If the prosecutrix consents on certain terms which defendant refuses, and then attempts to carnally know her with out her consent, he is guilty. Long, 93-542.

FEMALE AIDING GUILTY.-A female who aids and abets a male assailant in an attempt to commit a rape, becomes thereby a principal in the offense. Jones, 83-605.

EVIDENCE. The testimony of the mother of the prosecutrix that prosecu trix's brother told her that he saw defendant on top of his sister with his hand over her mouth, and that she was trying to get up, is admissible in corroboration of the testimony of the prosecutrix and her brother, they having previously testified to the same thing. Powell, 106-635; 11 S. E. 191.

Evidence that the prosecutrix is a lewd woman goes to her credit, and is competent. Long, 93–542.

EVIDENCE SUFFICIENT TO BE ADMITTED.-Defendant, who was a day laborer employed by prosecutrix's husband, opened the door of the room where the prosecutrix was lying down with her baby, without knocking, and asked where her husband was; being told that he was absent he expressed his intention to put his hands on her, and when she told him he would not he started into the room; she ran to the back door of an adjoining room, he pursuing, and as she caught hold of the knob he caught hold of her and put his other arm between her and the door, after a struggle she escaped into the back yard: Held, that the evidence was sufficient to be left to the jury. Page, 127-512; 37 S. E. 66.

The defendant, who was fifty-four years of age, after employing attentions, gifts and money, sent for the prosecutrix, who was only about fourteen, to go to the cotton house to empty some baskets; he went in behind her, closed the door, and when she started out he jerked her down, put his hand on her private parts, caught her in his arms and felt her breasts, then put his hand where his pants unbuttoned, she screaming and crying and trying to get loose; he got his finger inserted in her person twice, and finally after a few minutes desisted: Held, that the evidence was sufficient to be submitted to the jury. Mehaffey, 132-1062; 44 S. E. 107.

T

Prosecutrix was walking near the railroad with her eight-year-old brother, and defendant, a colored man, was walking the railroad in the same direction about 200 yards ahead of her; when defendant slowed his gait she would slow hers, and when he would stop she would; he kept stopping and looking back and folding and opening his arms, and once he shook his hat at her while looking back; she would change from the railroad track to the dirt road running parallel, and he would do likewise, keeping in front of her, she continuing to change and he to change until she got within thirty feet of him, when he turned back, and she became frightened and ran toward a house 200 yards away, carrying her little brother by the hand; he ran after her about sixty feet and had gotten within fifteen feet of her when he stopped; the E house at the place where he stopped had not been seen on account of corn in a field; neither of them spoke; there was a school about 200 or 300 yards CH from where she began to run and in sight and two dwellings in sight: Held, p that the evidence was sufficient to be submitted to the jury. Garner, 129—the 536; 40 S. E. 6.

On indictment for assault with intent to commit rape, evidence of the repu tation of the prosecutrix for virtue is competent. Daniel, 87-507.

th

EVIDENCE SUFFICIENT TO CONVICT.-Evidence that the prosecutrix, while h going alone to the house of an acquaintance in the night-time, was pursued a

« ÀÌÀü°è¼Ó »