State v. Thomas

111 A. 538, 31 Del. 102, 1 W.W. Harr. 102, 1920 Del. LEXIS 10

• Court: Delaware Court of Oyer and Terminer
• Decided: September 27, 1920
• Docket: Indictment No. 99
• Status: Published

Opinion

Conrad, J.

(charging the jury). The indictment in this case charges that Ernest Thomas, the accused, on the 22d day of July of this year, in Blackbird hundred, in this county, violently and feloniously did make an assault upon one, Emma Talley, and her, the said Emma Talley, did violently, forcibly, and against her will, feloniously ravish and carnally know.

The offense charged is that which is commonly known as rape. Rape in this state has been held to be the carnal knowledge of a woman by force and against her will. Force, either actual or presumptive, is, in legal contemplation, an indispensable element of rape. Upon proof of carnal penetration of a female of the age of consent, that is, of seven years of age or more, the burden is upon the state to prove to the satisfaction of the jury, beyond a reasonable doubt, that the penetration was consummated by force and against the will of the prosecuting witness, or by putting her in fear and terror, before a conviction can be had. When the fact appears that sexual connection has been had against the consent of the woman, the law implies force.

It is the law of this state that, in prosecutions for rape, it is not necessary to prove the actual emissio seminis, in order to constitute a carnal knowledge. The carnal knowledge is deemed complete upon proof of an actual penetravit. But while it is not necessary under the law for the state to prove more than an actual penetravit, and while the slightest penetration is sufficient, yet it must be shown beyond a reasonable doubt that there was an actual penetration, at least proof of some degree of entrance of the male organ within the private parts of the female. And it must be also proved to the satisfaction of the jury beyond a reasonable doubt that such penetration was made without the consent of the female.

If you believe from the evidence in this case beyond a reasonable doubt that accused did have sexual intercourse with the prosecuting witness, and that such intercourse was had by force and against her will, your verdict should be guilty.

We feel it our duty to call to your attention two statutes respecting the jury’s recommendation of an accused to the mercy of the court." One statute applies to any defendant tried for a capital offense. There is another statute, almost identical in language, which applies specifically to a defendant tried for rape. We will read for your instruction both of these statutes, and wish you to listen very attentively.

The statute which applies to any defendant tried for a capital offense is found in volume 29, Laws of Delaware, chapter 266, page 856, approved March 15, A. D. 1917, and is as follows:

“ That in all cases where the penalty for crime prescribed by the laws of the state of Delaware is death, if the jury shall, at the time of rendering their verdict, recommend the defendant to the mercy of the court, the court may, if it seems proper to do so, impose the sentence of life imprisonment instead of death.”

The statute which applies specifically to a defendant tried for rape is found in volume 26, Laws of Delaware, chapter 270, page 733, amending chapter 127, Rev. Code 10893 (Code 1915, § 4706), and is as follows:

“ Whoever shall commit the crime of rape or who shall carnally know and abuse a female child under the age of seven years, shall be deemed guilty of felony and shall suffer death; provided, however, that if the jury, at the time of rendering their verdict, shall recommend the defendant to mercy, the Court may, if it seems proper to do so, impose the sentence of life imprisonment instead of death.”

You will no.te that the two are similar so far as the duty of the jury is concerned, and when reasonably construed mean that where the jury are satisfied of the prisoner’s guilt they may recommend him to the mercy of the court when the evidence convinces them that mercy ought to be shown the prisoner. They do not mean that there should be a recommendation in every case. If there is nothing shown in the case that appeals to the jury in the prisoner’s behalf and convinces them that he is entitled to mercy, there should be no recommendation.

Verdict, guilty.