People v. Verdegreen

Van Fleet, J. Defendant was convicted of an assault with intent to rape, and was sentenced to a term of years in the state prison. He appeals from the judgment.

1. The evidence disclosed that the object of the alleged assault was a girl of the age of seven years; that she went voluntarily to the room of defendant, and submitted, without resistance, to his advances. Upon this evidence defendant requested the court to charge the jury that: “ In an assault with intent to commit rape there must not only be an intent to commit a rape, but that intent must be manifested by an assault upon the person intended to be ravished. The law requires both ingredients, and neither can be dispensed with. An assault implies force upon one side, and repulsion [213]or want of assent upon the other. An assault upon a consenting.female, young or old, is a legal impossibility. Although a child under fourteen years of age is incapable of giving a legal consent, yet if she gives an actual consent, there can be no assault. In a word, a child under fourteen years of age cannot legally consent to rape upon her, yet she may consent to an act with intent to commit it; and such attempt or act, if committed with her consent, is not an assault.”

The instruction was refused, and its refusal is assigned as error.

The contention of appellant, in line with the principles announced in his requested instruction, is that there can be no such thing as an assault upon a consenting female, regardless of the fact that she may be under the age when she can legally consent to an act of sexual intercourse; that while one may be convicted of rape, or of an attempt to commit it, upon a female under the statutory age, notwithstanding her actual consent, that he cannot, under like circumstances, be guilty of an assault to commit rape, because the latter offense implies resistance on the part of the one assaulted.

In this view of the law appellant is unquestionably sustained by very excellent authority. It is so held in State v. Pickett, 11 Nev. 255, 21 Am. Rep. 754, where the same question was before the court; and a like doctrine is announced in Smith v. State, 12 Ohio St. 466, 80 Am. Dec, 355, and in some English cases there cited. But such is not the view taken by this court in construing our statute upon the subject. Our code provides; “Rape is an act of sexual intercourse accomplished with a female not the wife of the perpetrator, under either of the following circumstances: 1. Where the female is under the age of fourteen years; 2.” etc., enumerating a number of other circumstances under which the offense may be accomplished. (Pen. Code, sec. 261.) And it is further provided that one who assaults another with intent to commit rape is punishable as for