Majority
p. 152GENERAL SESSIONS. NEW YORK, NOVEMBER, 1823. The People vs. James Stamford.
Headnote
Assault, with intent to commit a Rape.Construction pf stat. 13 Eliz. p. 7,
The prisoner was indicted for an assault upon Eliza Morrison, an infant of about seven years of age, with an intent to commit a rape,
' The injury upon the body of Eliza was proved by the testimony of an old lady who resided in the house where the crime was perpetrated. She being but seven years of age, and not appearing to understand the nature of an oath, was not sworn. It was therefore uncertain whether the act was committed with or without her consent.
Blake, counsel for the prisoner,
contended, that at common law, force was necessary to the commission of a rape, above or under ten years of age. The statute 18 Eliz. c. 7. had made an alteration in the common law; by that statute, and the act of assembly of New York; carnal knowledge of an infant, with or without consent, was felony. But‘neither the statute of Eliz. or the act of assembly of New York, ( 1 R. L. 156.) extended to cases of an attempt to commit a rape, and that where it was doubtful whether the attempt was with the consent of the sufferer or not, it was the duty of the jury to acquit.
p. 153
The court after remarking upon the atrocious nature of offences of this kind when committed upon children who were ignorant of the consequences, observed that the rule of law contended for by the counsel was undoubtedly true. The statute of Eliz. and the act of assembly of New York had made an innovation in the common law; formerly force was necessary in the commission of a rape in all cases; now, by the statute above mentioned, carnal knowledge of an infant under ten years of age was felony, whether she consented or not. It was obvious the statute did not apply to an attempt to commit a rape, it v/as therefore as at common law; but that it was almost impossible to suppose consent from an infant of seven years of age ; that the act was obviously against her will, .and that the presumption of law was so strong as to amount to proof of force.
The jury found him guilty of an assault with intent to commit a rape ; he was sentenced to the state prison for the term of five years.