State v. Wray

Macfarlane, J.

A demurrer to the indictment was sustained, and the state appealed. The charges contained in the indictment were as follows: “That James M. Wray, late of the county of Morgan, on or about the twenty-second day of August, A. D. 1890, at the said, county of Morgan, in the state of Missouri, in and upon one Nora E. G-aither, a female child under the age of fourteen years, to-wit, of the age of thirteen years, unlawfully and feloniously did make an assault, with the intent her, the said Nora E. G-aither, then and there feloniously to unlawfully and carnally know and abuse, contrary,” etc.

Two objections were made to the indictment. First, that section 3480 under which the indictment was drawn was not enacted with the formalities made mandatory by the constitution, and the word ‘ ‘fourteen’ ’ contained in the statute was not contained in the bill as passed by the general assembly.

The statute is upon its face presumptively valid. The statute rolls on deposit in the archives of the state,' bearing the approval of the governor, and on its face showing that all prerequisite constitutional requirements have been complied with, corresponds exactly and literally with the published statutes.

The objection to this law was raised by demurrer. No evidence was, therefore, introduced to rebut the strong presumption the law raises that the legislature proceeded regularly and according to all constitutional mandates in the enactment of the law. This presumption is conclusive except as to matters upon which the *598 constitution makes the validity of the enactment rest. In respect to such matters the constitution is mandatory, and the rolls themselves may be contradicted by journal entries, and the law itself overthrown, if these entries show .clearly, and beyond all doubt, a want of conformity to the mandates of the constitution. State ex rel. v. Mead, 71 Mo. 268 ; Jennings v. Russell, 92 Ala. 603 ; Speer v. Mayor, 85 Ga. 52 ; The People ex rel. v. McElroy, 72 Mich. 447 ; Weyand v. Stover, 35 Kan. 545 .

It may also be said that courts may, and often do, take judicial notice of the journal entries of the houses of the general assembly; at the same time they are only evidence upon which facts are to be determined, though upon these facts the validity of a law may ultimately depend. This evidence should be brought before the court. The Revised Statutes as published by the state are made prima facie evidence' of the enrolled laws of which they purport to be copies. R. S. 1889, sec. 6613. The presumptions of validity which attach to the original rolls follow and attach also to these verified published copies.

The Revised Statutes then stand as embodying the laws of the state, and it devolves upon anyone attacking the validity of any of these laws, on the ground that constitutional requirements had not been observed in their enactment, to prove the fact of such omissions by the journal entries. Courts are satisfied to take the statutes as furnished by the legislature, and give them full faith and credit, without seeking in each case to learn from the legislative record whether that act was passed legally and regularly. When evidence of non-compliance is properly brought to our attention we will then act upon it; our duty does not require us to go beyond this even in criminal eases and seek for grounds upon which to overthrow the work of the *599 co-ordinate branch of the government. The presumption of the validity of the law was not overcome. The non-compliance of the revision committee with the requirements of section 6609 in failing to note, at the lower margin of section 3480, the amendment of section 1253, Revised Statutes, 1879, does not affect the validity of the section as amended. These notations were only intended to aid and facilitate the examination and investigation of the statute on any particular subject, and not to enlarge, modify or repeal the law or affect it in any manner.

II. The second ground of objection to the indictment is that it is insufficient under said sections 3480 and 3490. The objection as we understand it is put upon the ground that there could be no criminality in an assault, made with the consent of the person assaulted, unless expressly declared criminal by the statute, which is not done here.

Rape is defined, under section 3480, as follows: “Every person who shall be convicted of rape, either by carnally and unlawfully knowing any female child under the age of fourteen years, or by forcibly ravishing any woman of the age of fourteen years or upwards, shall suffer death or be punished by imprisonment in the penitentiary not less than five years, in the discretion of the jury.”

Section 3490 provides that every person who shall be convicted of an assault with intent to commit * * * rape * * * shall be punished, etc.

Carnal knowledge of a female child under fourteen years of age is rape under this statute, whether accomplished with or without force, or with or without the consent of the child. It follows that an assault with the intent to have carnal knowledge of a female child under fourteen years of age would constitute a crime *600 punishable under section 3490, regardless of the use of force on the one part or granting consent on the other.

In the case of State v. Meinhart, 73 Mo. 563 , a demurrer to an indictment in the exact language of this one was sustained, and an appeal taken by the state to this court, where the indictment was held good. Ray, J., who wrote the opinion of the court, says: “When section 1263 (3490), in declaring the punishment which shall be inflicted upon every person convicted of an assault to commit any of the various offenses therein specified, uses the word ‘rape’ it means and imputes an assault to perpetrate either one of the state of facts which section 1253 (now 3480) defines to be a rape; and an indictment which charges, as in this case, ‘an unlawful and felonious assault with intent her, the said Amelia Thomas, then and there feloniously to unlawfully and carnally know and abuse’ is clearly good under the statute.” McComas v. State, 11 Mo. 117 ; State v. Dalton, 106 Mo. 463 ; State v. Jaeger, 66 Mo. 175 .

We are aware that under common-law rules it is generally held that there cannot be an assault with intent to have carnal knowledge of a child with her consent; “because, by the common law, violence consented to is not an assault, and the statute which makes her consent immaterial in defense of the carnal knowledge does not extend also to the assault.” Bishop’s Statutory Crimes, secs. 496, 499.

There are cases which have followed the common-law rule, though in jurisdictions in which one statute makes carnal knowledge of .a female child under the age of consent rape, and another statute declares it a crime to perpetrate an assault with intent to commit any felony. See Stephens v. State, 107 Ind. 185 ; 8 N. E. Rep. 94. We recognize the force of the argument in this line of decisions under statutes as *601 •general as those. Our statute, however, would scarcely he more explicit if it declared in express terms, that an assault upon a female child, under fourteen years of age, with intent to carnally know her, would he a crime, though the child consented to the assault. We think the indictment good. Judgment reversed and cause remanded.