Sekinoff

On Petition for Rehearing.

In his petition for rehearing the plaintiff in error relies upon the fact that section 18 of the Penal Code of Alaska was adopted from a statute of Ohio, and prior to such adoption had been construed by the Supreme Court of Ohio in Smith v. State, 12 Ohio St. 466 , 80 Am.Dec. 355, where *134 it was held that an attempt to abuse, with her consent, a female child who had not reached the years of consent was not indictable under the Ohio statute as an assault with intent to commit rape; the court ruling that where there was consent there could be no assault. The statute of Ohio then in force and so construed provided: “That if any person shall assault another, with intent to commit a murder, rape or robbery upon the person so assaulted, every person so offending, shall be deeme,d guilty of a misdemeanor,” etc.

Long prior to the enactment of the Penal Code of Alaska, the Legislature of' Ohio had amended the statute to read: “Whoever assaults another with intent to kill, or to commit robbery or rape upon the person so assaulted, or attempts to carnally know and abuse a female person under sixteen years of age, with her consent, shall be imprisoned,”…

We have given to the record in this case attentive consideration, and find in it nothing that would justify any interference with either the verdict or judgment, unless there be merit in the contention on the part of the plaintiff in error that he was found guilty of and sentenced to imprisonment for a crime not charged in the indictment. It is enough to say in response to the claim that the pertinent part of the testimony of the witnesses Mrs. Kashevaroff and Mrs. Malachoff was pure hearsay; that not only is there no assignment of error covering that suggestion, but the record fails to show that any objection was made to such testimony, and as a matter of course there could have been no ruling or exception regarding the matter.

The indictment was based on section 1894 of the Compiled Laws of Alaska, which reads: “That whoever has carnal knowledge of a female person forcibly and against her will, or, being sixteen years of age, carnally knows and abuses a female person under sixteen years of age, with her consent, is guilty of rape.”

It will be seen that by that statute the crime of rape is defined in two separate and distinct ways — the first being substantially the same as was…