
    CONSTITUTIONAL COURT, CHARLESTON,
    MAY, 1813.
    The State v. Francis Le Blanc.
    The testimony of an infant of seven years, corroborated by circumstances held sufficient to justify a conviction of a capital offence. The credibility of such witness is properly left to the jury. In rape, any the least penetration is sufficient. Quere, if the evidence of emission be necessary 1 the fact properly left to the jury.
    Motion for a new trial.
    The defendant in this case, was found guilty of carnal knowledge ef an infant, under the age of ten years, contrary to the statute. The material witness, was the child, an infant little more than seven years old, at the time the charge is laid. It appeared in evidence, that several days elapsed before she disclosed any of the circumstances stated in her evidence ; and not then, till she was charged by her mother, who discovered blood on her linen,' with having had connection with a man, and closely questioned as to the circumstances. She then pointed out the prisoner, as the offender, and his house, as the scene of the offence. It was also proved by the physicians, that both were suffering under the same disease. Opposed to this evidence, were the facts of the child’s not complaining of the injury, till a considerable time after, as well as the circumstances under which the narrative from her was obtained; the time of day, between the hours of two and five o’clock in the after, noon, in August, and the public situation in which the outrage was charged to have been perpetrated; her inconsistency in declaring to the magistrate that she cried out, and in deposing in court, that she did not. A witness for the prisoner, deposed,' that on that very day, which he was enabled to ascertain from cercumstances, having been examined by the magistrate, soon after the alleged occurrence, he was at the house of the prisoner, at the very time the prisoner was charged with the commission of the crime, and that nothing of that sort took place. The child deposed also to an attitude, viz. that she_ stood up with her legs between his, and he sat down. She also stated that he did not move her from the floor.
    The court charged the jury, that the testimony of the mother and father, which, beyond the circumstances of the child’s disclosure, was only a repetition of her narrative, was, if they, the wit-messes were believed, in law, confirmation of the child’s evidence. That they were not bound to believe the prisoner’s witness, though uncontradieted, but might exercise their discretion, as to the weight his evidence was entitled to. That if they thought the child had, in delivering her testimony, forgotten from her embarrassment, her real attitude, they were at liberty to take that into consideration ; and that it was probable the magistrate was mistaken, when he stated, that the child had said before him that she cried out, as his attention was not probably drawn particularly to this point. He charged also, that the least degree of penetration, coupled with emission, was a consummation of the crime. These appear to be the material facts, but this is not given as a full or minute statement of the evidence. A motion is made for a new trial, on the following grounds.
    1. Because the verdict is without sufficient evidence on the part of the State, and contrary to the evidence offered for the defendant.
    2. Because the verdict is contrary to law, inasmuch as upon all the evidence in the case, it appeared that even supposing an assault to have been committed on the infant, with the intent of carnally knowing her, the crime was not committed ; and, in the attitude to which she deposed, was impracticable.
    3. Because his honor the judge misdirected the jury in his charge, in the several particulars mentioned in the brief.
    4. Because the verdict was in other respects, contrary to law and evidence.
    Lance, and Simons, for the motion.
   Nott, J.

In a case of this nature, I am not disposed to say more than is sufficient to justify the opinion I am about to give. I think the law was fairly stated, and the facts fairly submitted to the jury, by the presiding judge, and I do not see any good ground to set aside the verdict. The only grounds relied upon for a néw trial, which appear to bo entitled to consideration, are, 1. That it is paying too much regard to the testimony of a child of nine years old, to suffer that alone to deprive a man of his life. 2. Admitting it to be true, the act was not so far accomplished as to constitute the offence for which the defendant is indicted.

With regard to the first point, it belonged to the jury to judge whether she was of sufficient character and discretion to deserve credit. And unless such evidence is to be considered sufficient, no person can ever be convicted of this offence ; for the patient is the only person by whom it is to be expected that the person can be identified. The commission of the fact on so young a subject, is in a great measure susceptible of proof from other circumstances. And in the present case, the testimony of the child is strongly corroborated by circumstances-, both as it relates to the person and the fact.

First, with regard to the person, her saying it was a barber’s shop ; pointing out the defendant at once as the man ; the descrip, tion of the closet where the- offence was committed, which she could not have known, if she had not been there; the disease being found on him which had been communicated to her, and the consistency of her story, so often related, are circumstances which could hardly have conspired to support a fabricated tale.

With regard to the fact, the corroborating circumstances are equally strong. That an unlawfhl connection was attempted, may be inferred from the disease which she contracted ; for, although it is admitted that the infection may be communicated without carnal intercourse, yet, such' a thing is not to be presumed ; and when this fact-is relied on only as a circumstance to strengthen her testimony, it cannot fail to have that effect. Th*e lameness which was immediately observed by the mother, and the stains upon her clothes, although not absolutely conclusive, are certaihly strong corroborating circumstances. I am, therefore, satisfied with the verdict.'

With regard to the witness, who pretended he was in company with the defendant at the time the transaction is said to have taken place, and the other testimony relied upon to weaken the evidence on the part of the prosecution, it belonged to the jury to decide; and I do not feel authorised to say they have not decided correctly.

But 2d. It is said that the act was not so completed as to constitute the offence, and that there could not have been a sufficient penetration. It is laid down by all writers on criminal law, that the least penetration is sufficient. The child herself has proved there was some, penetration. The doctors all concur that some penetration may be effected on a subject as small as this, and if it might be, the lameness affords a presumption that sufficient force was used for that purpose. The marks upon her clothes strengthen the presumption, that it actually did take place. In Ilussin’s case, 1 East, 438, it is said, the passage was so narrow that a finger could not be introduced; yet the fact was left to a jury, who found the defendant guilty. All the judges held, that it was properly referred to the jury, and refused to set aside the verdict. I presume, that, in that case, the penetration was no greater than in this, and that the facts ought to have been, as they were, left to a jury.

"With regard to the other ingredient, which it is contended is necessary to constitule this offence, if it is necessary, of which I have strong doubts, I think that also properly left to the jury. But t;na]jy¡ ¡f t|)e facts as proved, are true, the moral guilt of the defendant is sufficiently established ; and the jury having thought it legally proved, I am not disposed to look with eagle’s eyes, to see if I cannot, by some legal subtlety, rescue him from the punishment he so justly deserves.

Colcock, Brevard, and Bay, Js., concurred.  