Opinion of the Court-Beatty, J.

if the book had been treated as evidence, but discredited, he might have moved upon some other ground, which would have given him an opportunity of explaining its apparent discrepancies. The terms of the ruling of the court below do not indicate that the book was rejected on account of fraudulent appearances, and it would be more readily inferred from the expressions "improperly kept" and "not a proper book," that the fault found with it was that it was kept like a ledger, for instance, instead of a book of original entries. The defendant, therefore, never had any notice, actual or inferential, until after his motion for a new trial had been overruled, that the evidence he relied on had been rejected for any other reason than because it was deemed incompetent; and it would be most unjust to him to sustain the order of the district court on the ground now relied upon. It must stand or fall upon the correctness or incorrectness of the ruling as it was originally made and announced, and as to that question, the whole ground seems to be covered by the admission, in his argument, by counsel for respondent, that "the book was before the court sitting as a jury, by consent of plaintiff." If it was evidence before the court by consent of plaintiff, it was certainly error in the court to treat it as not evidence. (Sherwood v. Sissa, 5 Nev. 354-5.) In the case just cited, the point determined was very similar to that presented in this case. The questions whether, independent of our statute permitting parties to be witnesses in their own behalf, books of account are admissible as evidence in favor of the party who has kept them, and, if so, to what extent, were not decided; but it was held that being admitted without objection they become evidence, and are to be weighed and taken for what they are worth. The decision in that case covers this, and it is perhaps unnecessary to go further. It may be added, however, that the respondent concedes that the strongest authority supports this rule: That books of original entry, on proper foundation being laid by the oath of the party who has kept them, are, independent of our statute, competent evidence to prove, prima facie, services rendered and goods delivered and their values. But he

Points decided.

denies that they are competent to prove cash payments either to the party charged, or to third persons on his account; and he says many of the charges in the defendant's book were for such payments. We do not decide these questions, as they are not presented by the case before us. Even according to the rule above stated, the charges in the book for board and washing and nursing and stock-ranching were competent evidence; and if received and credited, would have largely reduced the judgment. Our decision, however, goes upon the ground that all objections to the competency of the testimony, except the one stated, were waived (Sharon v. Minnock, 6 Nev. 382), and there was a virtual admission that any appearances in the book itself, affecting its competency, were susceptible of explanation. (1 Smith's L. C., 525-532; 8 Metcalfe, 270.) The judgment and order appealed from are reversed and cause remanded.

[No. 778]

THE STATE OF NEVADA, RESPONDENT, v. EPHRAIM PICKETT, APPELLANT.

ATTEMPT TO COMMIT RAPE-CONSENT OF FEMALE.-An attempt to commit rape does not constitute an assault when the female actually consents to what is done, whether she be within the age of twelve years or not. IDEM.-An assault is a necessary ingredient of every rape or attempted rape,

but it not a necessary ingredient of the crime of carnally knowing a child under the age of twelve years with or without her consent, which under the statute of this state is also called rape.

IDEM -As an assault implies force and resistance, the crime of " carnally knowing a child, etc.," may be committed, or at least attempted, without an assault, if there is actual consent on the part of the female. IDEM.-There can be no assault upon a consenting female, although there may be what the statute designates a rape.

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IDEM. By virtue of the provisions of the statutes of this state, (Comp. Laws, sections 2464 and 2037) the defendant might have been convicted attempt to commit rape," even if the child consented to all he did, but it was error to instruct the jury that he could under such circumstances be convicted of "assault with intent to commit rape."

of an

APPEAL from the District Court of the Fifth Judicial District, Lander County.

4

Opinion of the Court--Beatty, J.

The facts are stated in the opinion.

T. W. W. Davies, for Appellant.

M. S. Bonnifield, also for Appellant.

J. R Kiltrell, Attorney-General, for Respondent.

The point upon which the case was decided, was not discussed in the brief filed by the attorney-general.

*

* *

I. The verdict and judgment are against law, because th testimony shows that the girl consented to what was done, if anything by the defendant. To bring the case within the statute, there must have been not only an intent to commit a rape, but that intent must have been manifested by an assault upon the person intended to be ravished. The statute requires both ingredients, and we can dispense with neither. An assault implies force upon one side, and repulsion, or want of assault, upon the other. "An assault upon a consenting female, old or young, is a contradiction in terms, a legal impossibility." the child is incapable of giving a legal consent, give an actual consent there can be no assault. The State, 12 Ohio, 466; O'Meara v. State, 17 Reg v. Read et al., 2 Carr. & Kind. 386; Reg v. Read et al., 1 Den. Cr. Cas. 377, also note on p. 379; Reg v. Martin, 9 C. & P. 213; Reg v. Meredith, 8 C. & P. 589; 2 Bish. Cr. Law, sec. 930, and cases cited.

By the Court, BEATTY, J.:

Although

yet if she

(Smith v. Ohio, 519;

One of the assignments of error in this case is, in our opinion, well founded. The defendant was indicted for rape, and convicted of an assault with intent to commit rape. His motion for a new trial was overruled, and he was sentenced to fourteen years' imprisonment. The evidence adduced at the trial showed that the object of the supposed assault was a female under the age of twelve years, and in submitting the case to the jury, the court among other things charged them as follows: "If the female is under the age of twelve years, she is deemed in

Opinion of the Court--Beatty, J.

*

capable of consenting to any carnal intercourse, and the legal presumption that any such carnal knowledge is forcible and against her will is conclusive. If the jury believe from the evidence that the defendant is over fourteen years of age, and that the girl known as Caroline Davis is under the age of twelve years, and at the time and place charged in the indictment, the defendant did have carnal knowledge of her by penetrating her body, he is guilty of * But rape. if the jury believe that the defendant attempted to commit a rape and failed to effect a penetration, as above described, they should find a verdict of guilty of an assault with the intent to commit rape." To the giving of this charge the defendant excepted; and he argues that it was erroneous, for this reason: that, the jury was thereby instructed that upon proof of an unsuccessful attempt to have carnal knowledge of the girl, he might be convicted of an assault to commit rape, although everything he did was with her actual consent the law being, as he contends, that an attempt to commit rape can never constitute an assault when the female actually consents to what is done, whether she be within the age of twelve years or not.

When the proposition was stated on the oral argument of the case, I was strongly inclined to consider it untenable, and to hold that the charge of the district judge was correct; but after examining the cases relating to the subject, I am convinced that the weight of reason and authority is on the side of the appellant.

The common law definition of rape is "the carnal knowledge of a woman forcibly and against her will." (4 Blacks. Com., 210.) The same definition is adopted by our statute. (Comp. Laws, sec. 2350.) Under this definition, an assault is a necessary ingredient of every rape, or attempted rape. But it is not a necessary ingredient of the crime of carnally knowing a child under the age of twelve years, with or without her consent, which is defined in the latter part of the section, and which is called "rape." It is obvious that here are two crimes differing essentially in their nature, though called by the same name. To one force and resistance are essential ingredients, while to the other they are

VOL. XI.-17

Opinion of the Court-Beatty, J.

not essential; they may be present or absent without affecting the criminality of the fact of carnal knowledge. As an assault implies force and resistance, the crime last defined may be committed, or at least attempted, without an assault, if there is actual consent on the part of the female.

This is well settled in England, where, under the provisions of several statutes, the carnal knowledge of a female under ten years of age, with or without her consent, is made a “felony." The statutory crime is not there denominated "rape," and the English judges have escaped the confusion of ideas which in this country has no doubt arisen from the fact that two essentially different crimes have been called by the same name, leading our courts, in some instances, to attribute to the statutory rape all the qualities of common law rape. Thus in the case of Hays v. The People (1 Hill, 352), where the precise question here involved was under discussion, Judge Cowen, delivering the opinion of the court, said: "The assent of such an infant being void as to the principal crime, it is equally so in respect to the incipient advances of the offender. That the infant assented to or even aided in the prisoner's attempt, cannot, therefore, as in the case of an adult, be alleged in his favor any more than if he had consummated his purpose." And this construction was afterwards adopted by the Supreme Court of Michigan in the case of The People v. McDonald (9 Mich. 150). The New York case was decided in 1841, and no reference was made to several cases then recently decided in England, by which a different construction had been given to a statute substantially the same as that of New York. The court was probably not aware of those decisions. The Michigan case was decided twenty years later, but the court took no notice of the English decisions, though they were referred to on the argument. There may be other cases which sustain the same view, but if so, they have escaped our attention. On the other hand, there is a still later case decided by the Supreme Court of Ohio (Smith v. The State, 12 Ohio, 466), in which an opposite conclusion is reached after a full discussion of the question and elaborate review of the authorities. The rea