Reports of Cases Decided in the Supreme Court of the State of Oregon, Vol. 39 - new book

Purchase of this book includes free trial access to www.million-books.com where you can read more than a million books for free. This is an OCR edition with typos. Excerpt from book: For the state there was a brief over the names of D. R. y. Blackburn, Attorney-General, and A. Evan Reames, District Attorney, with an oral argument by Mr. Blackburn. Mr. Chief Justice Bean delivered the opinion. 1. The defendant was convicted of the crime of rape by carnally knowing a female child under the age of sixteen years. Objection was made to the introduction of any testimony for the state on the ground that the indictment does not state a crime, because it does not allege that defendant was over the age of sixteen years when it was alleged to have been committed. The statute (Laws, 1895, p. 67, ) provides that, "if any person over the age of .sixteen years shall carnally know any female child under the age of sixteen years," etc., he shall be deemed guilty of rape. It is argued that under this statute the age of the defendant is an essential ingredient of the crime, and must be averred in the indictment. But, as we understand the statute, its only effect is to raise the age of capacity of the male from fourteen, as it was at common law, to sixteen years. At common law, a boy under fourteen years of age was conclusively presumed to be physically incapable of committing the crime of rape, but it was never held that it was necessary to allege the age of the defendant in an indictment for that crime: 16 Am. and Eng. Ency. Law (1 ed.), 315; Commonwealth v. Seannel, 11 Cush. 547; Button v. People, 145 111. 279 (34 N. E. 420); State v.Ward, 35 Minn. 182 (28 N. W. 192). Nor is it necessary under the statute. If the defendant was below the requisite age, it is a matter of defense. Mr. Bishop says the age of the defendant need not 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 belo...