¶1(concurring), — While I concur in the conclusion that the judgment of the court below should be reversed, I am unable to assent to the proposition that the information in this case states facts sufficient to constitute a crime. Section 1006 of the code provides that the indictment (information) must be direct and certain as regards the crime' charged, the party charged, and the particular circumstances of the crime charged, when they are necessary to constitute a complete crime. It is true that it is stated in the introductory part of the information that the defendant is accused of the crime of an assault with intent to commit rape, but it is nowhere alleged in the information that he did any of the acts constituting the crime of which he is "accused,” and which are set forth in the charging part or body of the information. The introductory part of an information, which sets forth the name of the crime, is nothing more than a formal statement of a *290conclusion of law supposed to result from a certain state of facts, and is useless unless fully warranted by the facts pleaded. A conclusion of guilt may be drawn from the particular facts and circumstances alleged; but in this case the fact that the defendant did those things alleged in the information can only be inferred from the accusation itself. I am of tbe opinion that the court erred in oyerr,uling the demurrer to the information.
2 Wash. 286
Whitcher v. State
Decided March 12, 1891
Washington Supreme Court · decided 1891-03-12
<p>RAPE — ASSAULT WITH INTENT— INFORMATION —VARIANCE.</p> <p>Under the statute of this state (§ 1004, Code 1881) an information which omits the name of the defendant from the charging part, but names him in the accusing part of the information, is sufficient. (Andebs, C. J., and Stiles, J., dissent.)</p> <p>To warrant a conviction under an information charging an assault with force, with intent to rape a female under the age of sixteen years, an assault with force must be proved; and an instruction, that the fact that she consented to the advances made constitutes no defense, is erroneous. (Dunbab, J., dissents.)</p> <p>Though the laws of Washington make it rape to have carnal knowledge of a female under the age of consent, even with her consent, there can, in the absence of fraud, be no assault with intent to rape, when she consents, since there can be no assault without force or fraud.</p>
Good law ✅— No negative treatment on recordhow we know
Decided 1891-03-12
How this case has been cited
Cited by 3 later decisions — most recently June 1924
2 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
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