46 Conn. 349 (Conn. 1878), State v. Worden

Citation46 Conn. 349
Opinion JudgeCarpenter, J.
Party NameThe State v. Charles Worden.
AttorneyD. B. Lockwood and A. H. Averill, for the plaintiff in error. J. H. Olmstead, State's Attorney, for the State.
CourtSupreme Court of Connecticut

Page 349

46 Conn. 349 (Conn. 1878)

The State

v.

Charles Worden.

Supreme Court of Errors of Connecticut.

October, 1878

The act of 1874 provided that in all prosecutions the party accused, if he should so elect, might be tried to the court instead of by the jury; and that in such cases the court should have full power to try the case and to render judgment. Held not to conflict with the provisions of the state constitution that every person accused " shall have a speedy public trial by an impartial jury," and that " the right of trial by jury shall remain inviolate."

The statute which provides that every person who shall carnally know and abuse any female child under ten years of age shall be punished by imprisonment in the state prison for not less than seven nor more than ten years, was not intended to do away with the common law crime of rape where committed on a child under ten years of age.

Indictment for rape upon a female child under ten years of age, in the Superior Court in Fairfield County. The prisoner pleaded not guilty, and under the statute of 1874, elected to be tried by the court, and was afterwards tried by Culver, J., and found guilty. The counsel for the prisoner thereupon moved in arrest of judgment, which motion was overruled and judgment rendered, and the prisoner sentenced to imprisonment for life in the state prison, which was the punishment fixed by statute for the crime of rape. They thereupon filed a motion in error, assigning as error-1st, that under the statute (Gen. Statutes, tit. 20, ch. 12, sec. 7,) which provides that any person who shall carnally know and abuse any female child under the age of ten years, shall be imprisoned in the state prison not less than seven nor more than ten years, there could be no conviction of the common law crime of rape upon such a child; and 2d, that the statute authorizing the prisoner to elect to be tried by the court instead of the jury was unconstitutional and void.

The case was argued at a former term of the court, and by direction of the judges was re-argued at the present term.

D. B. Lockwood and A. H. Averill, for the plaintiff in error.

First. The crime of carnally knowing and abusing a female child under the age of ten years is not the crime of rape, but a distinct offence created by statute. 1 East Crown Law, 435, 436, 448; 1 Russell on Crimes, 929; 3 Chitty Cr. Law, 814; Bishop on Statutory Crimes, §§ 480, 483; Barbour's Cr. Law, 75; Neale's case, 1 Denison C. C., 37; People v. Quin, 50 Barb., 128. It is a necessary ingredient in the crime of rape that the offence be committed against the will of the female; but this ingredient is not necessary to the commission of the offence of carnally knowing and abusing a female child under ten years of age. 1 Russell on Crimes, 926; State v. Picket, 11 Nev. 255. The word " " ravish" in the indictment may be rejected as surplusage. McComas v. The State, 11 Mo. 116; Bishop on Statutory Crimes, § 486. The whole subject of the carnal abuse of children under ten years of age has been regulated by legislation in many, perhaps all, of the states. 2 Bishop Crim. Law, § 1133; Commonwealth v. Bennett, 2 Virg. Cas., 235; Commonwealth v. Fields, 4 Leigh, 648. The first statute on the subject is the statute of Elizabeth, by which, " " " for plain declaration of law," it is enacted " that if any person shall unlawfully and carnally know and abuse any woman child under the age of ten years, every such unlawful and carnal knowledge shall be felony, and the offender thereof being duly convicted shall suffer as a felon without allowance of clergy." 2 Bishop Crim. Law, § 1112. This statute has been re-enacted in many of the states with varying penalties. In Massachusetts the penalty was the same as for the crime of rape, to wit, death, from 1642 to 1852, when the penalty was modified for both offences to imprisonment for life. Mass. Rev. Stat., 1836, p. 718; Mass. Rev. Stat., 1860, p. 793; Commonwealth v. Burke, 105 Mass. 380. The first statute in Connecticut upon the subject of rape is the following: " Capital Lawes established by the General Court the first of December, 1642. Sec. 9. Yf any man shall forceably and without consent ravish any maid or woman that is lawfully married or contracted he shall be put to death. Deut. 22, 25." Colonial Records, 1636-1665, p. 77. This was the law until the revision of 1672. Compilation of 1808, page 304, note 1. In 1672 the following was enacted and continued to be the law until the revision of 1821. " " Be it enacted, & c. that if any man shall forcibly and without consent ravish any maid or woman by committing carnal copulation with her against her consent he shall be put to death; provided complaint and prosecution be made forthwith upon the rape." Compilation of 1796, p. 349; Compilation of 1808, p. 304. The Revised Statutes of 1821, page 152, provide as follows: " Sec. 10. Every person who shall commit the crime of rape, and be thereof duly convicted, shall suffer death." -" Sec. 11. Every person who shall carnally know and abuse any female child, under the age of ten years, and shall be thereof duly convicted, shall suffer imprisonment in Newgate prison, during his natural life, or for such other term as the court having cognizance of the offence shall determine. By the statutes of 1835 the penalty is modified as follows: Sec. 10. Every person who shall commit the crime of rape, and be thereof duly convicted, shall suffer imprisonment in the Connecticut State Prison during his natural life." -" Sec. 11. Any person who shall carnally know and abuse any female child, under the age of ten years, and shall be thereof duly convicted, shall suffer imprisonment in the Connecticut state prison for a term not less than seven, nor more than ten years." Statutes of 1835, p. 120, 121. And so the law now is. Gen. Statutes, 1875, p. 299, sec. 7.

Second. The statute authorizing the prisoner to elect to be tried by the court instead of the jury contravenes the provisions of article 1, sections 9 and 21, of our state constitution.

1. The crime charged, whether rape or carnal abuse, was a felony at the time of the adoption of the constitution in 1818. 2 Bishop Crim. Law, § 1133. Such a crime was triable only by a jury; and it was incompetent for the legislature, under the constitution, to provide for the trial of such a crime without a jury. Sedgwick's Const. Law, 482, 496; 2 Swift's Dig., 403; 4 Black. Com., 349, 350; 1 Chitty Crim. Law, 522; Stokes v. The People, 53 N. York, 171; Vose v. Cockcroft, 44 Id., 422; Emerick v. Harris, 1 Binney, 424; Francis v. Baker, 2 R. Isl., 103; Guile v. Brown, 38 Conn. 242.

2. In capital and other felonies the accused cannot waive his right to a trial by the common law jury. The state has an interest in the preservation of the liberty of its citizens, and will not allow it to be taken away except by due process of law. Story on Const., § 1780; 4 Black. Com., 349; Sedgwick Const. Law, 474, 494 and note; Cooley on Const. Limitations, 319, 351, 354 and note 2; 1 Benn. & Heard, Lead. Crim. Cases, 492, 496; Cancemi v. The People, 18 N. York, 128; Maurer v. The People, 43 Id., 1, 4; Grant v. The People, 4 Parker C. C., 534; Brimmingstool v. The People, 1 Mich. N. P., 260; The People v. Smith, 9 Mich. 193; Hill v. The People, 16 Id., 357; Underwood v. The People, 32 Id., 1; Wilson v. The State, 16 Ark. 601; Portland v. Bangor, 65 Me. 120; Mase v. Home Ins. Co., 13 Am. Reps., 297, note; Brown v. The State, 8 Blackf., 561; Brown v. The State, 16 Ind. 496; Bond v. The State, 17 Ark. 290; Work v. The State, 2 Ohio S. R., 296; Williams v. The State, 12 Id., 622; Goddard v. The State, 12 Conn. 448, 454; State v. Maine, 27 Id., 281. The oath administered to the jury in criminal cases is different from the oath in civil cases, and different from the oath under which the court acts. 1 Bishop Crim. Procedure, § 983; State v. Jones, 5 Ala. 666, 673; Dixon v. The State, 4 G. Greene (Iowa), 381; State v. Ostrander, 18 Iowa 435, 452. A plea of not guilty to an information or indictment for crime, whether felony or misdemeanor, puts the accused upon the country and can be tried by a jury only. The rule is universal as to felonies. The right of trial by jury upon indictment or information for crime is secured by the constitution upon a principle of public policy and cannot be waived. Forsyth's Trial by Jury, 354, 382; Cooley's Const. Lim., 319, 410 and note; Proffat's Trial by Jury, § 113; State v. Lockwood, 43 Wis. 403; Neales v. The State, 10 Mo. 498; State v. Mansfield, 41 Id., 470; Commonwealth v. Shaw, 1 Pittsburg, 492. In the cases where it has been held that it is competent to deny the parties the privilege of a trial in a court of first instance provided the right is allowed on appeal, recent adjudications show that this does not apply to criminal cases. Cooley Const. Lim., 410, and cases there cited; Matter of Dana, 7 Benedict, 1. In a criminal case the interests of society are involved and jurisdictional questions cannot be waived. A man cannot dispose of his life by arbitration. Life and liberty are inalienable rights. Vose v. Cockroft, 44 N. York, 422; Cooley's Const. Lim., 181, 319, and cases there cited; 1 Wharton's Crim. Law, § 751 b .

3. The position that the right of trial by jury is secured to persons accused of felony by the constitution secures the further right of trial by an impartial jury. Any act of the legislature providing for the trial otherwise than by a common law jury composed of twelve men would be unconstitutional and void. Stokes v. The People, 53 N. York, 171; Pomeroy on Const. Law, § 242; Hart v. Granger, 1 Conn. 169. The waiver can only be made by the party in interest, and is subject to the general control of public policy; and whenever the object of the statute is to promote great public interests, liberty or morals, it cannot be defeated by any private stipulation. Sedgwick Const...

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15 practice notes
  • 195 U.S. 65 (1903), Schick v. United States
    • United States
    • Federal Cases United States Supreme Court
    • May 31, 1904
    ...In Connelly v. State, 60 Ala. 89, a statute authorizing the waiver of a jury was sustained. The same rule was made in State v. Worden, 46 Conn. 349, which was a case of a felony. See also People v. Rathbun, 21 Wend. 509, We are of opinion that the waiver of a jury by the defendants in these......
  • 146 U.S. 314 (1893), 1100, Hallinger v. Davis
    • United States
    • Federal Cases United States Supreme Court
    • November 28, 1892
    ...of such proceeding. Dailey v. State, 4 Ohio St. 57; Dillingham v. State, 5 Ohio St. 280; People v. Noll, 20 Cal. 164; State v. Worden, 46 Conn. 349; State v. Albee, 61 N.H. If a recorded confession of every material averment of an indictment puts the confessor upon the country, the institut......
  • 159 U.S. 95 (1895), In re Belt, Petitioner
    • United States
    • Federal Cases United States Supreme Court
    • June 3, 1895
    ...of such proceeding, Dailey v. State, 4 Ohio St. 57; Dillingham v. State, 5 Ohio St. 280; People v. Noll, 20 Cal. 164; State v. Worden, 46 Conn. 349; State v. Albee, 61 N.H. 423, And see Edwards v. State, 45 N.J.L. 419, 423; Ward v. People, 30 Mich. 116; Connelly v. State, 60 Ala. 89; Murphy......
  • 296 A.2d 636 (Vt. 1972), 78-71, State v. McGrath
    • United States
    • Vermont Supreme Court of Vermont
    • October 3, 1972
    ...same effect, see the opinion by Chief Justice Shaw in Commonwealth v. Dailey & another, 12 Cush. 80 (Mass. 1853), and State v. Worden, 46 Conn. 349 A waiver of a constitutional right is allowed '. . . provided the waiver is made voluntarily, knowingly and intelligently' declared Chief J......
  • Request a trial to view additional results
15 cases
  • 195 U.S. 65 (1903), Schick v. United States
    • United States
    • Federal Cases United States Supreme Court
    • May 31, 1904
    ...In Connelly v. State, 60 Ala. 89, a statute authorizing the waiver of a jury was sustained. The same rule was made in State v. Worden, 46 Conn. 349, which was a case of a felony. See also People v. Rathbun, 21 Wend. 509, We are of opinion that the waiver of a jury by the defendants in these......
  • 146 U.S. 314 (1893), 1100, Hallinger v. Davis
    • United States
    • Federal Cases United States Supreme Court
    • November 28, 1892
    ...of such proceeding. Dailey v. State, 4 Ohio St. 57; Dillingham v. State, 5 Ohio St. 280; People v. Noll, 20 Cal. 164; State v. Worden, 46 Conn. 349; State v. Albee, 61 N.H. If a recorded confession of every material averment of an indictment puts the confessor upon the country, the institut......
  • 159 U.S. 95 (1895), In re Belt, Petitioner
    • United States
    • Federal Cases United States Supreme Court
    • June 3, 1895
    ...of such proceeding, Dailey v. State, 4 Ohio St. 57; Dillingham v. State, 5 Ohio St. 280; People v. Noll, 20 Cal. 164; State v. Worden, 46 Conn. 349; State v. Albee, 61 N.H. 423, And see Edwards v. State, 45 N.J.L. 419, 423; Ward v. People, 30 Mich. 116; Connelly v. State, 60 Ala. 89; Murphy......
  • 296 A.2d 636 (Vt. 1972), 78-71, State v. McGrath
    • United States
    • Vermont Supreme Court of Vermont
    • October 3, 1972
    ...same effect, see the opinion by Chief Justice Shaw in Commonwealth v. Dailey & another, 12 Cush. 80 (Mass. 1853), and State v. Worden, 46 Conn. 349 A waiver of a constitutional right is allowed '. . . provided the waiver is made voluntarily, knowingly and intelligently' declared Chief J......
  • Request a trial to view additional results