
    The State of Ohio, Appellee, v. Dobbins, Appellant.
    (No. 36190
    Decided May 25, 1960.)
    
      
      Mr. Earl W. Allison, prosecuting attorney, and Mr. Albert G. Giles, for appellee.
    
      Messrs. Wonnell & Zingarelli, for appellant.
   Bell, J.

No question is raised herein concerning the adequacy of proof of the taking of indecent and improper liberties with the person of the complaining witness, a 13-year-old girl.

The only question raised so far as the substance of the statute is concerned is whether an assault, in the classic sense of a threat of physical injury coupled with a present ability to inflict the same, is a necessary element of a violation of that portion of the above-quoted statute. For the purpose of this decision, it may be conceded that the acts giving rise to the indictment were committed with the consent of the complaining witness and without the infliction of force or fear.

In arguing that proof of an assault is a necessary element of the offense here charged, defendant relies upon the decisions of this court in Smith v. State, 12 Ohio St., 466, 80 Am. Dec., 355, and O’Meara v. State, 17 Ohio St., 515, to the effect that an attempt by a male person of the age of 17 years and upward to carnally know and abuse a female child under the age of ten years, with her consent, is not indictable as an assault with intent to commit a rape.

The statute involved in those decisions reads :

“That if any person shall assault another, with intent to commit a murder, rape or robbery upon the person so assaulted, every person so offending, shall be deemed guilty of a. misdemeanor * *

The Smith and O’Meara eases were decided in 1861 and 1867, respectively. Since those decisions, the General Assembly has determined the statutory age of consent in Ohio to be 16 years and has prescribed penalties for an attempt to carnally know and abuse a female under 16 with her consent (Section 2905.04, Revised Code) and for carnally knowing and abusing a female under 16 with her consent (Section 2905.03, Revised Code). Whatever, if any, force remains in the decisions of the Smith and O’Meara cases (see footnote 3, State v. Daniels, 169 Ohio St., 87, 93, 157 N. E. [2d], 736), we do not consider them controlling in the interpretation of a statute enacted more than 50 years later and dealing with the taking of indecent liberties rather than murder, robbery and rape.

Technically, the word, “assault,” as used in the statute under consideration may, of course, be construed in its classic definition, thus requiring the proof of an actual threat to do harm coupled with a present ability to do it. To do so, however, would tend to render impotent the protective arm that the demands of an enlightened society have caused to be placed around those of tender years.

In People v. Gibson, 232 N. Y., 458, 134 N. E., 531, reviewing the conviction of an 80-year-old man on a charge of assault in the third degree, where a 15-year-old girl testified to an incomplete act of intercourse for money and with her consent, the following words of Judge Pound, although pertinent to a statute different in terms from the one under consideration here, are nonetheless worthy of note in this discussion:

“Where the act of indecency tends toward the commission of an offense to which consent is no defense (e. g., statutory rape), such as lewd fondling, caressing, or embracing not amounting to an attempt to commit the offense, it would seem a sophisticated refinement of terms to say that the assent of the infant is a defense to a criminal charge of assault in the third degree.”

In countering the argument that the offense should have been considered as an aiding or abetting of delinquency (the same argument made herein by the defendant), Judge Pound continued:'

“Nor does the fact that the impairment of a child’s morals is an independent offense preclude a prosecution for an assault in the third degree where the child, a consenting party, is debauched by means of lecherous handling by the defendant. ’ ’

In commenting upon the nature of the protection given to young boys and girls by the statute here under consideration, Judge Doyle in State v. Rudy, 101 Ohio App., 241, 139 N. E. (2d), 81, said:

“The law was directed at homosexuals who would assault children of either sex, as well as against anyone else over the age of 18 who would take such liberties with the person of a child under the age of 16 years by assault as the common sense of society would regard as indecent, indelicate and improper.”

And it is interesting to note that in the review of the Rudy case by this court (162 Ohio St., 362, 123 N. E. [2d], 426), although the question of the necessity of proof of assault was not raised, the syllabus of that case begins with the words, ‘ ‘ Section 12423-1', General Code (Section 2903.01 of the Revised Code), which defines felonious assault * * *.”

It was unquestionably the intention of the General Assembly to protect young people, both male and female, from their own curiosity and from the improper and indecent advances by more mature persons, whether those advances are in the form of taking indecent liberties with the person of the child or in the form of indecent exposures of the person of the adult. To permit one to escape the consequences of his act by requiring proof of an actual assault would tend to destroy the prophylactic effect of the statute. We are of the opinion that the act of taking indecent and improper liberties with the person of a child under 16 by a person over 18 constitutes, in and of itself, the felonious assault which is defined in Section 2903.01, Revised Code.

The defendant has raised a question concerning the propriety of testimony given on behalf of the state in rebuttal concerning the giving of a lie detector or polygraph test to the defendant. We have read the record of this testimony resulting from a question raised by the defendant himself during the course of the trial, and we find nothing in it prejudicial to the defendant.

Judgment affirmed.

Weygandt, C. J., Zimmerman, Matthias, Herbert and Peck, JJ., concur.

Taft, J., dissents.

Tart, J.,

dissenting. I agree with the contentions made in the majority opinion that there ought to he a law making it a felony for a person over 18 to “willfully take indecent and improper liberties with the person of” a child under 16, even “with her consent.”

Unfortunately, the General Assembly has enacted no such law; and, as judges, we are not supposed to legislate.

As stated in the majority opinion, “it may be conceded that the acts giving rise to the indictment were committed with the consent of the complaining witness and without the infliction of force or fear.”

In Smith v. State, 12 Ohio St., 466, 80 Am. Dec., 355, in holding that there could be no assault on a consenting victim, it was said:

“An assault implies force upon one side, and repulsion, or at least want of assent, upon the other. An assault, therefore, upon a consenting party would seem to be a legal absurdity. ’ ’

In O’Meara v. State, 17 Ohio St., 515, it was held that “actual consent” was “inconsistent with the legal idea of an assault. ’ ’

Thus, unless those decisions are to be ignored, it is necessary, in order to affirm this judgment, to delete from Section 2903.01, Eevised Code, the word “assault” which appears in that statute in the conjunctive with the words “willfully take indecent and improper liberties with the person of such child. ’ ’

In order to avoid recognizing the necessity of such judicial legislation, the majority opinion states that “since” the “decisions” in the Smith and O’Meara cases, “the General Assembly has determined the statutory age of consent in Ohio to be 16 years” by reason of the provisions of Sections 2905.03 and 2905.04, Eevised Code. However, both those statutes specify that the acts proscribed are crimes although done “with * * * consent” of the victim. No such words with respect to “consent” appear in the statute involved in the instant case. Furthermore, what is now Section 2905.03, Eevised Code, was in force when the Smith and O’Meara cases were decided except that the ages specified then were 17 plus and ten minus instead of 18 plus and 17 minus; and both those eases involved children under ten.

Thus, presumably, when the General Assembly used the word “assault” more than 54 years after this court decided those cases and at a time when this court had never questioned the soundness of its decisions and pronouncements of law in those cases, the General Assembly knew what that word meant and, by its use of that word, expressed an intention to give it the meaning which had theretofore been consistently given to it by this court.

Certainly, it indicated that it knew the meaning of the word “assault” when it first enacted in 1902 what is now Section 2905.04, Revised Code. Thus, this court had specifically stated in the syllabus of 1 the Smith case and again in the syllabus of the O’Meara case that “an attempt” by a male 17 or over “to carnally know and abuse a female * * * under ten * * * with her consent” was “not indictable” under what is now Section 2901.24, Revised Code, “as an assault with intent to commit a rape”; and that first enactment in 3902 of what is now Section 2905.04, Revised Code (95 Ohio Laws, 344), amended what is now Section 2901.24, Revised Code, by making just such an attempt punishable as a felony under the same statutory section that dealt with an “assault with intent to commit a rape.”

Quite obviously, in enacting what is now Section 2903.01, Revised Code, in 1921, the General Assembly expressed an intention that, where, as the words of that statute state, what a defendant did was done “without committing or intending to commit the crime of rape,” there would no felony without an “assault.”

Since the New York decision cited in the majority opinion was decided under different statutory provisions with respect to statutory rape (see State v. Daniels, 169 Ohio St., 87, 94, 157 N. E. [2d], 736), it does not furnish a sound basis for a departure from the previous decisions.of this court, the pronouncements of law made by this court as reasons for those decisions, or from the existing statutory words enacted almost '40 years ago by the General Assembly in the light of decisions and pronouncements of law by this court which were probably then known about and understood by the General Assembly. 
      
      Admittedly this is punishable as a misdemeanor under Section 2151.41, Revised Code.
     