In order that the confusion and conflict in our prior decisions may be removed, and a definite rule established, I concur in the foregoing opinion. In doing this, I do not, however, accept the reasoning by which the conclusion is reached.
Section 12966, Code of 1927, defines two offenses: one, carnal knowledge of a female by force and against her will, and the other, carnal knowledge of a female under the age of 17 years. The crime first defined can be accomplished only by the use of force. Carnal knowledge of a female under 17 years of age is a crime, although accomplished with her full acquiescence and assent. By common usage, these two offenses are called "rape."
Section 12968, Code of 1927, defines assault with intent to commit rape as follows: "If any person assault a female with intent to commit a rape * * *"
Section 13920, Code of 1927, provides that:
"The defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment."
All agree that, if the offense charged was committed upon a female over 17 years of age, assault with intent to commit rape, assault and battery, and simple assault are included.
The opinion holds, in harmony with a distinct line of authorities in this country, that a female child under the age of 17 years may consent to assault and battery and simple assault; that, to justify the submission of these offenses, the use of some force must be shown; and negatively, that, if none is shown, only the higher offense should be submitted. This, in my opinion, is illogical. As said in Davis v. State, 31 Neb. 247 (47 N.W. 854):
"`* * * to speak of an assault upon her [a female child] without her consent, with intent to carnally know and abuse her *Page 759 with her consent, seems to involve a contradiction in terms. But when it is once considered that the intention of the law is to declare that a young girl shall be deemed incapable of consenting to such an act to her injury, and that evidence of any consent by her shall be incompetent in defense to an indictment therefor, and that, although she gives a formal and apparent consent, yet in law, as in reality, she gives none, because she does not and cannot take in the meaning of what is done, all legal difficulty disappears, and the conclusion may properly be reached that the assault is without her consent, and against her will.'"
If the female child is incapable of consenting to the consummated act, then any touching of her body for that purpose is unlawful, and constitutes an assault and battery. The act is impossible of consummation with the assent of the female without coming in contact with her unlawfully if the offenses of assault with intent to commit rape, assault and battery, and simple assault, are included offenses, within the definition contained in Section 13920. Unless the so-called lesser degrees are necessarily included in the higher, they do not exist. Either every step necessary to the consummation of the act with the assent of the female is unlawful, or no lesser offenses can be included. As said in many cases, assent of the female under 17 years of age is immaterial.
The question as to whether included offenses should or should not be submitted to the jury does not, in my judgment, depend at all upon the evidence, unless the consummated act was accomplished by force, which, in such case, must be charged in the indictment. If the act is accomplished by the actual assent of the female, but such consummated act is preceded by an assault or assault and battery, these offenses are distinct and independent, not necessarily included in the crime charged, and should, in no respect, control the court in the submission ofnecessarily included offenses. To justify submission, the lesser offense must be one necessarily included in the higher.
I am authorized to say that Mr. Justice Evans concurs in this view.
Either the included offenses must be submitted in every case in which the act is voluntary and with the assent of the female, or they should not, in the absence of a charge of common-law rape, be submitted at all. It is my opinion that the crime consists *Page 760 solely in the carnal knowledge of a female under the age of 17 years, and that no lesser offense is necessarily included therein, and therefore, only the crime charged should be submitted to the jury.
Each of the foregoing views is supported by eminent authority, but I know of no authority supporting the rule adopted by the majority. I think the better and correct view is that, when the act is accomplished with a female child under the age of consent, by the voluntary or willing assent, only the crime of rape is committed, and no lesser degrees are necessarily included. There is, in such case, no assault or assault and battery, within any definition of those offenses.
I am authorized to say that Mr. Justice Kindig concurs in this view.