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

| % WW oao % oct, fong oe1ofs t6ey oSrUe
at the age Of sightssn gears. II In e6sc!
psssspposes that boys Of the same age
with gifa o. svsn much younger thur
siris, are VASTLY their svpeiors In mental
capacity and In the power to srsrcise TO-
htion. n recognizes a greater difference
between the ssrss and q greater SUPERB
oify on the part Of the males Que, the
females than has sUsr before been promsi-
gated or admitted o. believed By any per.
son or set Of persons. although II has
generally been maintained that there
always haze been sufficient differences sr-
listing bstwssn the ssIss to justify oil the
great differences In the povers. priviissss,
disabilities and immvnities which by Uirtye
of thsia ws haus heretofore sIisted between
the seTss.
The defendant in the present case was
boy nineteen years of age, and the female
with whom he had the sexual intercourse was
a girl sixteen years of age. Each lacked
just two years Of having arrived at the age of
majority. Their sexual intercourse with each
other was had at divers times from April IS,
1889, up to May IS, 1880. Also, from the
record brought to this court, il would seem
that the girl had also had improper relations
with other male persons besides the defend
ant. On February ~, 1890, the girl gave
Of -, oh b. al hat
the defendant was the father. II also seems
that with regard to the intercourse between
these parties no conjugal right was violated,
no force or fraud or seduction or promise of
marriage has been imputed; they were NOT Of
kin TO each other; both willingly participated
in the wrongful acts; both in fact consented,
and each had ample capacity to know what
he or she was doing, and to consent; and
none of the improper acts committed by
them, whether Of sexual intercourse or other
wise, were committed in public or in the
presence Of others. Indeed, except for the
foregoing statute, their acts would constitute
nothing more than pure and simple fornica-
ton.
II is claimed on the part of the defendant
that the foregoing statute either can have no
application to this case, or, so far as il does
apply TO this case, il is unconstitutional and
void for the reason that il conflicts with 5 9
of the bill of rights, because il inficts cruel
and unusual punishment; and is in conflict
with the spirit of the bill of rights generally;
and is in violation of common sense, common
reason, and common justice and the follow
ing authorities are cited in support Of this
claim: .4ndryJon .. City of Wellington, 40
Kas. I73; ; Am. & Eng. Encyc. of Law,
GA, note ], and cases there cited Potter's
Dwarris on Stat, 10, II, IS. II is claimed
that the Legislature cannot convert pure and
simple fornication into rape, or provide
punishment for the same as though il were
rape.
The statutes Of this State relating to illicit
intercourse between the sexes, when such
statutes are compared with each other, are
peculiar. Under them, sexual intercourse
between unmarried persons where no ex-
traneous facts exist to magnify the wrong, is
never as TO the, female an offense, and is
never as TO the male an ofense unless the
female is under IS years Of age. And where
the intercourse is procured under promise
Of marriage il is never an ofense with regard
to the female, and is only an ofiense with re-
gard to the male where the female is under
IL years Of age, and il is not then an ofiense