
    UNITED STATES of America, Plaintiff, v. Benedict John DAVIS, Defendant.
    Crim. No. 8489.
    United States District Court D. North Dakota, Northeastern Division.
    Feb. 21, 1957.
    
      Robert L. Vogel, U. S. Atty., Fargo, N. D., for plaintiff.
    John B. Hart, Rolla, N. D., for defendant.
   DAVIES, District Judge.

This matter came before the Court upon the defendant’s motion to quash both counts of an indictment urn der 18 U.S.C.A. § 1153, accusing Benedict John Davis of the crimes of incest and rape by a single act of intercourse with his 17 year old first cousin in the Indian Country. To accord with Rule 12(a) of Federal Rules of Criminal Procedure, 18 U.S.C.A., this matter will be considered as a motion to dismiss.

The Court having examined the records and files herein together with the memoranda of counsel in support of and in opposition to the motion and being of the opinion that under 18 U.S.C.A. § 13, the definition and punishment of the offense of incest are supplied by Chapters 12-2206 and 14-0303, respectively, North Dakota Revised Code of 1943; and being of the opinion that carnal knowledge of a child, 17 years of age, without force does not constitute the offense of rape under 18 U.S.C.A. § 1153, Now, Therefore,

It Is Ordered:

1. That the motion to dismiss Count One of the indictment be and the same hereby is denied.

2. That the motion to dismiss Count Two of the indictment be and the same hereby is granted.  