18 Mass.App.Ct. 926 (1984), Commonwealth v. Rowe

Citation18 Mass.App.Ct. 926, 465 N.E.2d 1220
Party NameCOMMONWEALTH v. Ronald J. ROWE.
Case DateJuly 09, 1984
CourtAppeals Court of Massachusetts

Page 926

18 Mass.App.Ct. 926 (1984)

465 N.E.2d 1220

COMMONWEALTH

v.

Ronald J. ROWE.

Appeals Court of Massachusetts, Franklin.

July 9, 1984

Argued June 11, 1984.

[465 N.E.2d 1221] John C. Gates, Greenfield, for defendant.

Charles K. Stephenson, Asst. Dist. Atty., for the Commonwealth.

Before ARMSTRONG, CUTTER and ROSE, JJ.

RESCRIPT.

On an indictment for statutory rape (G.L. c. 265, § 23) of a fifteen-year old child, the defendant was convicted by the jury of indecent assault and battery of a person fourteen years of age or older (G.L. c. 265, § 13H, inserted by St.1980, c. 459, § 5). The defendant argues that the judge erred

Page 927

in failing to instruct the jury that lack of consent by the victim was an element of the latter offense. (The trial was had before the decision of the Supreme Judicial Court in Commonwealth v. Burke, 390 Mass. 480, 484, n. 4, 457 N.E.2d 622 [1983], which so held.)

The problem with the conviction is more far reaching. Lack of consent is not an element of statutory rape, and it follows that indecent assault and battery is not an offense included within the indictment. See Commonwealth v. Rodriguez, 11 Mass.App.Ct. 379, 380-382, 416 N.E.2d 540 (1981), and cases cited. We must consider the point on our own motion, because the scope of the indictment goes to the jurisdiction of the Superior Court. Commonwealth v. Burns, 8 Mass.App.Ct. 194, 196, 392 N.E.2d 865 (1979). It is immaterial that the defendant, by requesting the lesser-included-offense instruction, "invited" the error (see Lannon v. Commonwealth, 379 Mass. 786, 792-793, 400 N.E.2d 862 [1980] ), because the parties may not by consent, conduct, or waiver confer jurisdiction on the court. Second Bank-State Street Trust Co. v. Linsley, 341 Mass. 113, 116, 167 N.E.2d 624 (1960). Tosti v. Ayik, 386 Mass. 721, 725, 437 N.E.2d 1062 (1982). However, the fact that the court had no jurisdiction under the present indictment to convict and sentence the defendant for indecent assault and battery means that the defendant was not put in jeopardy with respect to that...

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16 practice notes
  • 350 F.Supp.2d 275 (D.Me. 2004), CR-03-41, United States v. Cadieux
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Court (Maine)
    • December 22, 2004
    ...a violation of G.L., Ch. 265, § 13B."); Commonwealth v. Burke, 390 Mass. 480, 457 N.E.2d 622, 627 (1983); Commonwealth v. Rowe, 18 Mass.App.Ct. 926, 465 N.E.2d 1220, 1221 (1984). As of 1983, therefore, a violation of § 13B, Indecent Assault and Battery on Child Under Fourteen, had the ......
  • 22 Mass.App.Ct. 730 (1986), Commonwealth v. Reid
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • October 1, 1986
    ...assault and battery on a child under fourteen as a lesser included offense, not only for the reason stated in Commonwealth v. Rowe, 18 Mass.App.Ct. 926, 465 N.E.2d 1220 (1984), but for the reason that the indictment specified the charge as sexual intercourse with a child under the age of si......
  • 78 Mass.App.Ct. 515 (2011), 08-P-1392, Commonwealth v. Roderiques
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • January 5, 2011
    ...and sentence the defendant of that offense and the judgment must be reversed and the verdict set aside. See Commonwealth v. Rowe, 18 Mass.App.Ct. 926, 927, 465 N.E.2d 1220 (1984); Commonwealth v. Miranda, 22 Mass.App.Ct. 10, 14, 490 N.E.2d 1195 (1986); Commonwealth v. Farrell, 31 Mass.App.C......
  • 350 F.Supp.2d 275 (D.Me. 2004), CR-03-41, United States v. Cadieux
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Court (Maine)
    • December 22, 2004
    ...a violation of G.L., Ch. 265, § 13B."); Commonwealth v. Burke, 390 Mass. 480, 457 N.E.2d 622, 627 (1983); Commonwealth v. Rowe, 18 Mass.App.Ct. 926, 465 N.E.2d 1220, 1221 (1984). As of 1983, therefore, a violation of § 13B, Indecent Assault and Battery on Child Under Fourteen, had the ......
  • Request a trial to view additional results
16 cases
  • 350 F.Supp.2d 275 (D.Me. 2004), CR-03-41, United States v. Cadieux
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Court (Maine)
    • December 22, 2004
    ...a violation of G.L., Ch. 265, § 13B."); Commonwealth v. Burke, 390 Mass. 480, 457 N.E.2d 622, 627 (1983); Commonwealth v. Rowe, 18 Mass.App.Ct. 926, 465 N.E.2d 1220, 1221 (1984). As of 1983, therefore, a violation of § 13B, Indecent Assault and Battery on Child Under Fourteen, had the ......
  • 22 Mass.App.Ct. 730 (1986), Commonwealth v. Reid
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • October 1, 1986
    ...assault and battery on a child under fourteen as a lesser included offense, not only for the reason stated in Commonwealth v. Rowe, 18 Mass.App.Ct. 926, 465 N.E.2d 1220 (1984), but for the reason that the indictment specified the charge as sexual intercourse with a child under the age of si......
  • 78 Mass.App.Ct. 515 (2011), 08-P-1392, Commonwealth v. Roderiques
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • January 5, 2011
    ...and sentence the defendant of that offense and the judgment must be reversed and the verdict set aside. See Commonwealth v. Rowe, 18 Mass.App.Ct. 926, 927, 465 N.E.2d 1220 (1984); Commonwealth v. Miranda, 22 Mass.App.Ct. 10, 14, 490 N.E.2d 1195 (1986); Commonwealth v. Farrell, 31 Mass.App.C......
  • 350 F.Supp.2d 275 (D.Me. 2004), CR-03-41, United States v. Cadieux
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Court (Maine)
    • December 22, 2004
    ...a violation of G.L., Ch. 265, § 13B."); Commonwealth v. Burke, 390 Mass. 480, 457 N.E.2d 622, 627 (1983); Commonwealth v. Rowe, 18 Mass.App.Ct. 926, 465 N.E.2d 1220, 1221 (1984). As of 1983, therefore, a violation of § 13B, Indecent Assault and Battery on Child Under Fourteen, had the ......
  • Request a trial to view additional results