
    Gust Head v. State of Nebraska.
    Filed December 5, 1894.
    No. 7048.
    1. Assault With. Intent to Ravish Child: Intention of Accused: Evidence. In a prosecution for an assault with intent to-ravish and carnally know a female child under the age of consent (Criminal Code, sec. 12) the fact that the intention of the prisoner at the time of the assault proved was to have carnal knowledge of the prosecutrix with her consent and not otherwise is immaterial.
    2. -: Evidence. The prisoner, who had tendered his services to see the prosecutrix, nine years of age, home from a dance in the village of their residence, attempted while on the way from the dance hall to decoy her into a barn at or after the hour of midnight, and desisted only when he found the barn was locked. About that time, hearing some persons approaching, he seized her in his arms and hastily carried her into a privy in the rear of a store near by, and seventy-five feet from the sidewalk. While in his arms he prevented her from crying out hy putting his hands over her mouth; and, according to her testimony, he thrust his finger down her throat, lacerating it severely and causing her considerable pain. When he entered the privy with the prosecutrix the latter stumbled and fell, when the prisoner pushed her head down through one of the holes in the seat. At that point some men on the street hearing her cries hastened to her relief, but were compelled to break the door of the privy which the prisoner had locked on entering. Held, To sustain the verdict of assault with intent to ravish, under sections 12 and 14, Criminal Code.
    3. Criminal Law: Intoxication: Evidence. While intoxication is no excuse for an assault committed when under the influence thereof, it is proper to be considered by the jury for the purpose of determining whether the prisoner was at the time in question capable of entertaining the specific intent charged.
    Erbok to the district court for Dawson county. Tried below before Holcomb, J.
    
      George Gillan and G. W. Fox, for plaintiff in error.
    
      George Ii. Hastings, Attorney General, for the state.
   Post, J.

This is a petition in error to review a judgment of the district court for Dawson county, whereby the plaintiff in error was convicted of an assault with intent to commit the crime of rape upon May Elliott, a female child under fifteen years of age. The evidence of the state, which was not controverted at the trial, is to the effect that the child above named, under nine years of age, on the night in question, with permission of her mother, attended a masquerade ball in the village of Cozad. During the evening she danced several times with the prisoner, who is shown to have been somewhat intoxicated. When she started to leave the dancing hall, about midnight, the prisoner offered to accompany her home, a few rods distant. On the way •home he induced her to sit down on the sidewalk, saying that lie would get some candy and peanuts and they would then go into a barn near by and have some fun. He attempted to get into the barn designated but found it locked. About that time, on hearing some persons approaching, he seized her in his arms and carried her into a privy in the rear of an adjoining store, about seventy-five feet from the sidewalk. In order to prevent her crying while in his arms he put his hands over her mouth and thrust his finger down her thaoaf, severely lacerating it, and causing her. considerable pain. On entering the privy he bolted the door, when the child, according to her testimouy, stumbled and fell, and the prisoner pushed her head down through one of the holes of the seat. At that point some men on the street were attracted by her outcries and immediately hastened to her rescue. The prisoner on leaving the privy disappeared for a time but afterward returned to the hall where the dance was still in progress.

The facts stated prove the commission of an assault and battery, — a most disgusting and atrocious wrong to the person of the child named in the indictment. But it is contended by counsel for the prisoner that they are insufficient to warrant the jury in finding the existence of the specific intent essential to a conviction for the crime charged. It should be remembered in this connection that the child assaulted was in a legal sense incapable of consenting to the carnal act, hence the prisoner, if he intended at the time of the assault to carnally know or abuse said child, is guilty of all of the elements of the crime charged. (Davis v. State, 31 Neb., 247.) It is elementary law that the assault and the specific intention in all such cases must concur in point of time, and must be accompanied by an act or acts in some manner adapted to the accomplishment of the thing intended. In this case the acts of the prisoner were not only well adapted to the purpose alleged, but are of such a character as to satisfy us that his intention was to consummate the sexual act with the child under his care and protection. The attempt to decoy her into the barn at dead of night we regard as a circumstance so entirely inconsistent with the theory of his innocence as to exclude every rational 'hypothesis except that of the criminal design charged, while his subsequent acts convince us that it was his intention to use force if necessary to accomplish his purpose. That •conclusion has the support of abundant authority. (See Crew v. State, 22 S. W. Rep. [Tex.], 973; State v. Shroyer, 16 S. W. Rep. [Mo.], 286; Hays v. People, 1 Hill [N. Y.], 351; State v. Smith, 80 Mo., 516; State v. Montgomery, 63 Mo., 296.)

Another contention is that the prisoner was intoxicated to such a degree that he was incapable of forming the intention essential to the crime of rape in this instance. That •question was fairly submitted to the jury by instructions which advised them that while drunkenness is in general no excuse for crime, the evidence thereof should be considered for the purpose of determining whether the prisoner was at the time of the assault capable of entertaining the specific intent charged. In that there was not error (see Hill v. State, 42 Neb., 502, and authorities cited), and the evidence fully sustains the finding of the jury. There are other errors alleged in the giving of instructions, but as the charge on the branch of the case to which they apply was more favorable to the prisoner than he was entitled to, it follows that the exceptions are without merit. There is no error in the record prejudicial to the prisoner, and the judgment is

Affirmed.  