The Saline County journal. [volume] (Salina, Kan.) 1871-1893, 1892-11-03

Dor for ~ ysa,s a. aforesaid; bst II 10
under 10 years Of age 10 wosid Be- cosfsst
In the county jaH only. or ssst to the Stat
rsform school. And II would make no DIFF
ference that the girl might b q eonmos
prostitute -his psnishmsnt wosid BE- the
same. Eow. 1h 10 necessary that such q
severe pvnfshmsnf shoyid be iafictsd spon
COY for committing pure and simpis
tornication, II would seem that sons sRght
degree Of psnishmsnt might properly Be
inflicted upon the gi,f; and If II 10 sscss-
sdry that such ssvsrs pvsishment should
be inflicted upon sftkev, II uosId sesn that
some slight degree Of pvnishmsat might
properly be inflicted upon any person. male
or female. guilty Of illicit SERIAL inter
course, although the same might be only
fornieation. and the female be oysr rs or
oVsr ~ years Of age; and If such severe
punishment may properly BE- inflicted upon
any person for pure and simpis Tornica-
ton, II vouid seem that the greatest of
punishment would not b too severe for
any person Of fvH age who should commit
the greater wrong of adultery. or Of SERIAL
intercourse coupled with seduction.
We agree with counsel for the defendant.
that ait is not competent for the Legislature
to make that rape which in the very nature
of things and common justice and sense is
not; but courts in constituting statutes do
not look at mere forms or phrases, or even at
the improper use of language. but they look
at the substance Of things and try to ascer-
tain wha; was the real intention of the Leg
stature; and evidently the Legislature in
passing the foregoing statute intended that in
all cases Of Illicit intercourse, where the f.
male is under rs years of age, the male
should be punished by imprisonment at hard
labor in the Penitentiary for a period of not
more than 81 years nor less than FIVE years,
although the act might be pure and simple
fornieation. and nothing else. Instead of
enacting this, however, in direct terms, the
Legislature chose to accomplish the same re
suit in an indirect manner, and by amending
that section of the act relating to crimes and
Punishments ito wit, SGD which relates to
rape. When this section was first enacted in
the earlier days of Kansas, il was evidently
believed by the Legislature that the girls Of
Kansas then had the capacity to give their
consent to sexual intercourse at the age of ten
years, and that they had not such capacity at
any earlier age. And hence the age Of ten
years was fixed as the age Of consent; but
when the section was amended in 1887, SO as
10 make il read as il now reads, il would
seem that the law makers believed that the
girls Of Kansas at that time had no capacity
to give any intelligent consent to sexual in
tercourse until they arrived at the age Of
eighteen years. In substance, however, the
law makers simply intended to punish any
male person by Imprisonment, in the peniten-
Wary at hard labor for a term not exceeding
~ years who might he guilty Of any kind Of
Illicit sexual intercourse with any girl under
rs years Of age whether she consented OF
not, and whatever might be the surrounding
circumstances, and although the intercourse
might be pure and simple fornication. With
respect to the severity Of the punishment.
while we think il is true that il is a severer
one than has ever before been provided for
in any other State OF country for such an Of.
tense, yet we canno, say that the statute is
void for that reason. Imprisonment in the