Schang v. State

Citations

• 43 Fla. 561

Syllabus

<p>Criminal law — Carnal abuse of female child — Rape—Assault with intent to commit.</p> <p>1. Our statute, section 239G Revised Statutes, providing that “whoever ravishes and carnally knows a female of the age of ten years or more, by force and against her will, or unlawfully or carnally knows and abuses a female child under the age of ten years, shall be punished by death or by imprisonment in the State prison for life,” defines the crime of rape; and while it is necessary under it to allege and prove a different state of facts in order to justify a conviction where the female involved is over the age of ten years, than where she is under that age, — the one case requiring force and want of the-female’s consent to be shqwn, the other requiring simply the carnal knowledge and abuse of the child and that she is under ten years of age to appear, — yet in either case the crime denounced is rape punishable with the same penalty of death or life imprisonment. In the case of children under ten years of age our law presumes that persons of such immature age are incapable of either consenting to or protesting against the act, and this presumption of incapacity applied as well to every act of her assailant tending towrds the commission of the crime as to the consummated crime itself.</p> <p>2. Under an indictment charging in the terms of the Statute simply the carnal knowledge and abuse of a female child under the age of ten years there may properly be a conviction of an assault with intent to commit rape. In such cases, whether the inquiry be as to the consummated crime, or as to an assault with intent to commit it, it is not necessary to allege or prove that the acts were done against the will of such child. AYhether she consented or resisted is immaterial.</p>