Two actions, one entitled Elizabeth Braun, a minor, by Faustinus Braun, her guardian, against Karl Heidrich, and the other entitled Faustinus Braun against Karl Heidrich, were brought in the district court of Emmons county and tried together. In these actions it was sought to recover damages incident to alleged illegal intercourse, amounting to statutory rape and fornication, between the defendant and Elizabeth Braun. The actions were tried together under a stipulation that whatever verdict was rendered should cover both cases and be final and binding upon both plaintiffs. At the conclusion *Page 87 of the trial four forms of verdict were submitted to the jury, two to be used in case the jury found for the plaintiffs and two in case they found for the defendant. The jury returned a verdict in each case favorable to the plaintiff and separate judgments were entered. The defendant has appealed from the judgment entered in the case of Elizabeth Braun, a minor, by Faustinus Braun, her guardian. The principal contention on appeal is that as the intercourse appeared to have taken place with the consent of the plaintiff she has no cause of action. The facts may be briefly stated as follows:
Elizabeth Braun testified that she was sixteen years of age on the 5th day of July, 1929; that she was living with her father and mother upon a farm in the Gressmer district of Emmons county, being one of fourteen children in a family consisting of the father, mother, twelve boys and two girls; that at about 1:30 o'clock in the afternoon on the 24th day of June, 1929, the defendant, a boy about the same age as Elizabeth and who lived about three miles distant, came to the Braun farm on horseback; that he put his horse in the barn and approached the house; that at the time the only persons at home were Elizabeth and two of her brothers, four and five years of age. She testified to the defendant coming into the house and narrates the details of the occurrence of two acts of sexual intercourse which took place apparently with her consent. When, sometime afterward, she found that she was pregnant she did not tell her mother or others and when ultimately her mother ascertained her condition she did not tell her who was responsible, but when asked if the defendant was responsible she said "no." Later, however, when she was taken away for confinement she charged the defendant with being responsible and she testified upon the trial that he was the only person with whom she had ever had intercourse. The defendant disputes her testimony as to the acts narrated by her and also denies that he was present on the occasion or that he ever had been alone with Elizabeth. The child was born in Fargo and lived but eight days. Elizabeth was away from home on account of the confinement for approximately two months. Her father had incurred expenses incident to the confinement and the record shows that he was deprived of her services as a member of his household for a period of time. *Page 88
This is a case of first impression in this state. The decision necessarily depends upon the statutes. In support of the action the respondent cites cases from several jurisdictions where the statute makes a male person having intercourse with a female under a stated age of consent guilty of rape. Such statutes are construed as rendering a female under the prescribed age incapable of consenting. Then, for purposes of civil action, the logical view is taken that regardless of her actual consent the case must be determined as though she had not consented. Gaither v. Meacham, 214 Ala. 343, 108 So. 2, 45 A.L.R. 777; Reutkemeier v. Nolte, 179 Iowa, 342, 161 N.W. 290, L.R.A. 1917D, 273; Herman v. Turner, 117 Kan. 733, 232 P. 864; Bishop v. Liston,112 Neb. 559, 199 N.W. 825; Boyles v. Blankenhorn, 168 App. Div. 388, 153 N Y Supp. 466; Priboth v. Haveron, 41 Okla. 692, 139 P. 973; Hough v. Iderhoff, 69 Or. 568, 139 P. 931, 51 L.R.A.(N.S.) 982, Ann. Cas. 1916A, 247; Heumpfner v. Bailly, 36 S.D. 533, 156 N.W. 78. Our statute defining the crime of rape and fixing the age of consent is susceptible of a like construction (§ 9563, Compiled Laws of 1913; § 9566, Supplement to the Compiled Laws of 1913), and were it not for another provision adopted in 1915 penalizing illicit intercourse as fornication this case might well be disposed of in accord with the cases cited above. This statute, § 9578a, Supplement to the Compiled Laws of 1913 (chapter 159, Session Laws of 1915), so defines the crime of fornication as to make every male and female person not married to each other having voluntary sexual intercourse "separately" guilty of the crime of fornication; and, as if to emphasize the legislative intent that a female person of tender years and of previously chaste character consenting to but one act should be guilty of the offense, the statute says: "A female under eighteen years of age and under age of consent fixed in § 9563 which defines the crime of rape, is nevertheless by her voluntary intercourse guilty of fornication as herein defined." The statute then proceeds to prescribe a penalty for persons over eighteen years of age and to direct that, where persons under eighteen years of age are "accused of said crime," they shall be proceeded against under the provisions of chapter 23 of the Civil Code of Procedure, Compiled Laws of 1913, and acts amendatory thereof, this being the juvenile court law. The juvenile court law *Page 89 declares that all dependent, neglected and delinquent children under the age of eighteen years shall for the purposes of the act be considered wards of the state and it renders their persons subject to guardianship and to the control of the court. The term "delinquent child" is so defined as to mean "any child who while under the age of eighteen years violates any law of the state . . . or is guilty of indecent, immoral or lascivious conduct." Comp. Laws 1913, § 11,403. Hence, in the absence of chapter 159 of the Laws of 1915, defining fornication, any girl under eighteen consenting to an act of sexual intercourse was subject to being proceeded against under the juvenile court law as a delinquent child. Chapter 159, therefore, added nothing whatever to the powers of the juvenile court in this respect, except to bring her under another branch of the definition of a delinquent, namely, a person who violates a law of the state. As applied, therefore, to a female under eighteen years of age, the sole purpose of the fornication statute seems to be to characterize her as a person guilty of the crime as defined, notwithstanding she be under the age of consent fixed by the rape statute specifically referred to therein. Her act, in addition to being indecent and immoral, is characterized as a violation of the law of the state.
We have searched the statutes of other states in vain for a like provision. The nearest approach that we have seen is the Oregon statute (1 Oregon Code Anno. 1930, § 14-707), but under that statute only the male is deemed guilty of fornication. We are confident that no such statute exists in any state where the female is permitted to recover damages. In those jurisdictions the basis of the recovery is the injury to one who is incapable in law of consenting. Legally, she is innocent though consenting. But one cannot be held to be incapable in law of consenting to an act the voluntary commission of which is expressly made a violation of law. In our statute it is expressly provided that she is guilty of violating the law even though she be under the age of consent prescribed in another statute which punishes the male for rape. It is not possible, under this statute, to regard her as legally innocent. The statute says she is guilty and it furnishes an insuperable barrier to our regarding her otherwise. In light of this statute the rape statute must be read as fixing the age of consent merely for the *Page 90 purpose of penalizing the male perpetrator and not for the purpose of establishing the legal innocence of a consenting female.
It must be remembered that both at common law and under our statutes an infant is liable for his torts in like manner as any other person (Compiled Laws of 1913, § 4346), and the fact of voluntary participation in any joint wrongful act would preclude an infant female participant from recovery on common law principles were it not for some statute declaring her to be legally innocent. The rape statute alone would be sufficient for this purpose under the authorities above cited, but when another statute characterizes her act as a voluntary violation of law it is legally impossible to longer regard her as innocent for the purpose of a civil suit.
The majority of the court comes to this conclusion reluctantly. It would prefer to follow what it regards as the more enlightened view which permits an injured female of tender years to recover compensation for the greater injury which she suffers by reason of an act in which she voluntarily participated at a time when she was not mature enough to appreciate the consequences and when she therefore needed the protection of the law. But this court cannot legislate. It must concede to the legislative branch of the government full power to legislate. Neither can this court under the guise of construction refuse to give effect to plain, unambiguous language such as is contained in the statute in question. The statute expressly says that an unmarried female having voluntary sexual intercourse is guilty of the crime of fornication and as plainly as words can speak it says: "A female under eighteen years of age and under the age of consent fixed in § 9563 which defines the crime of rape, is nevertheless by her voluntary intercourse guilty of fornication as herein defined." No sentiment we might entertain can justify the court in saying that this plain language means anything different from what is expressed.
To the suggestion that the above language ought to be given a different meaning in order to avoid a supposed "monstrous situation" that would arise in the case of a man of mature years having sexual relations with an infant of ten years with the latter's consent, there are two obvious, conclusive answers. First, the court cannot legislate and, second, it is the law in this jurisdiction that children over seven *Page 91 and under the age of fourteen years are presumed to be incapable of committing crime and cannot be held accountable in the absence of clear proof that at the time of committing the act they knew its wrongfulness. Comp. Laws 1913, § 9207. Of course, it would be a question of fact requiring clear proof that a female under the age of fourteen years knew the wrongfulness of the act. If the question of her capacity for crime be answered in the negative, her participation in the act could not be considered criminal within the fornication statute or any other penal statute and for this reason she would not be prevented from recovering civil damages under the principle of this decision.
It follows that the judgment in favor of Elizabeth is erroneous and must be reversed.
CHRISTIANSON, Ch. J., and NUESLE, and BURKE, JJ., concur.