Com. v. Franks

Decision Date08 April 1974
PartiesCOMMONWEALTH v. Clemis FRANKS, Jr.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Albert L. Hutton, Jr., Boston, for defendant.

Edward T. Crossen, Asst. Dist. Atty. (Elizabeth C. Casey, Asst. Dist. Atty., with him), for the Commonwealth.

Before TAURO, C.J., and QUIRICO, BRAUCHER, HENNESSEY and KAPLAN, JJ.

QUIRICO, Justice.

The defendant Clemis Franks, Jr., was indicted and convicted on a charge of 'ravish(ing) and carnally know(ing) . . . a female child under the age of sixteen years, by force and against her will.' 1 He appeals pursuant to the provisions of G.L. c. 278, §§ 33A--33G.

The pertinent evidence before the jury was as follows. On May 24, 1969, at 2 P.M. when the alleged rape took place, the victim was fifteen years old (born March 2, 1954) and a student at the Industrial School for Crippled Children. At the trial (at which time she was eighteen years of age) the victim testified that she was walking on her way to a friend's house when a young black male, whom she subsequently identified as the defendant, passed her on the street in front of the Notre Dame Academy building in Roxbury. After he walked past her, he came up from behind her and grabbed her around the neck. She started to scream, but then felt something in her back which the defendant said was a gun, He then dragged her up some stairs and into a 'little hole' in the side of the Notre Dame Academy building and forced her to remove her clothing and had sexual intercourse with her. A medical examination later in the day showed the existence of male sperm in her vagina. The victim stated that she was able to get a good look at her assailant during this time ('I'd never forget his face'). On June 18, 1969, at the Roxbury court house, she identified the defendant as her assailant, first, from among twenty-seven photographs of black males shown to her, and then at a an informal lineup, from among twelve to fifteen black males who were then in custody and whom she viewed with the permission of the defendant's attorney. The defendant did not take the stand.

The defendant's sole argument for reversal is based on purported error in the judge's charge, to which he took no exception. The principle that an assignment of error under § 33D not based on an exception brings nothing to this court for review is 'so firmly established . . . and so universally understood and applied,' Commonwealth v. Underwood, 358 Mass. 506, 509, 265 N.E.2d 577, 580 (1970), that it is unnecessary for us to dwell on it. Commonwealth v. McDonald, 264 Mass. 324, 336, 162 N.E. 401 (1928); Commonwealth v. Gray, 314 Mass. 96, 102, 49 N.E.2d 603 (1943); Commonwealth v. Theberge, 330 Mass. 520, 527, 115 N.E.2d 719 (1953); Commonwealth v. Myers, 356 Mass. 343, 346, 252 N.E.2d 350 (1969). See especially, Commonwealth v. Taylor, 319 Mass. 631, 633, 67 N.E.2d 237 (1946), relative to purported errors in a jury charge. Only in very rare instances will this court act to correct an error to which no exception has been taken, the test being 'whether there is a substantial risk of a miscarriage of justice.' Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3, 9 (1967). We now state the legal and factual background of the case to which we must apply this test.

General Laws c. 265, § 22A, inserted by St.1955, c. 763, § 2, makes it a crime for a male to '(ravish) . . . and carnally (know) . . . a female child under sixteen by force and against her will . . ..' General Laws c. 265, § 23, as appearing in St.1966, c. 291, makes it a crime for a male to 'unlawfully and carnally (know) . . . and (abuse) . . . a female child under sixteen years of age.' Each section provides a basic penalty of 'imprisonment in the state prison for life or for any term of years' with variations for particular circumstances as described in the margin. 2

The indictment on which the defendant was tried charged all of the elements of a forcible rape of a female under the age of sixteen years punishable under § 22A. The evidence admitted at the trial, when considered in its light most favorable to the Commonwealth, would have permitted the jury to find that the defendant had committed the crime of forcible rape. The evidence was therefore also sufficient to have permitted the jury to find that he had committed the crime of consensual intercourse with a female under the age of sixteen years punishable under § 23 (commonly called 'statutory rape'). There is nothing in the record to indicate that the evidence would have been different, or that the case would have been tried differently, if the indictment had charged only the crime of statutory rape and not that of forcible rape.

The judge charged the jury as follows: 'In this case the defendant Franks is charged with . . . ravishing and carnally knowing . . . (the victim), a female child under the age of sixteen years, by force and against her will. . . . The evidence is that . . . (she) was born on March 2, 1954; and that this incident was alleged to have occurred on May 24, 1969. So if you accept those dates to be the fact, . . . (she) would not have been sixteen until March 2, 1970, which was after the date of the alleged offense. And, therefore, being under the age of sixteen, if there was a carnal knowledge of her, whether she consented or did not consent is of no consequence in the establishment of this defense, because the law protects young girls under the age of sixteen. And even if she had voluntary intercourse with this defendant or somebody else, and freely consented, a defendant who had relations with her would still be guilty of this offense. You may come to the conclusion from the evidence of . . . (the victim), if you accept it to be true, that it was against her will and without her consent. But I say to you, with or without consent, the offense is completed if there is carnal knowledge of . . . (her).'

It is clear that in his instructions to the jury the judge did not distinguish between the two different crimes of forcible rape of a female under sixteen (punishable under G.L. c. 265, § 22A), and statutory rape (punishable under § 23). Rather, he permitted the jury to find the defendant guilty if they found that he had committed either the one offence or the other and did not require that they specify which one.

The first question requiring our attention is whether under an indictment charging a defendant with forcible rape a jury could find the defendant guilty of statutory rape if the evidence was sufficient to prove only the latter crime. Stated differently, the question is whether the crime of statutory rape punishable under G.L. c. 265, § 23, is a crime included within the crime of forcible rape punishable under § 22A, which was charged in the indictment. We hold that this question, stated in either form, must be answered affirmatively.

The indictment in this case charged that the defendant 'did ravish and carnally know one . . . (named person), a female child under the age of sixteen years, by force and against her will' (emphasis supplied). That language in its entirety clearly charges all the elements of the crime of forcible rape under § 22A, as noted above. However, it also includes all of the elements of the crime of statutory rape under § 23, the language in italics above being unnecessary additional allegations to a charge of such crime.

General Laws c. 278, § 12 (which had its origin in St.1784, c. 66, § 11, and was changed in respects not here material in later statutory codifications), provides as follows: 'If a person indicted for a felony is acquitted by the verdict of part of the crime charged, and is convicted of the residue, such verdict may be received and recorded by the court, and thereupon the defendant shall be adjudged guilty of the crime, if any, which appears to the court to be substantially charged by the residue of the indictment, and shall be sentenced and punished accordingly.' In Commonwealth v. Drum, 19 Pick. 479, 480 (1837), where the defendant was indicted 'for a rape upon a female child under ten years of age,' the child testified to an assault but 'expressly negatived the fact of ravishing or of attempting it.' The trial court, then composed of three Justices of the Supreme Judicial Court, instructed the jury that since the indictment for rape 'necessarily charged substantially and formally an assault and battery upon the person of the female alleged to have been ravished,' the jury could find the defendant guilty of assault and battery by the application of Rev.Sts. c. 137, § 11, the predecessor of G.L. c. 278, § 12. To the same effect, and applying the same statute as it appeared in appropriate codifications, see Commonwealth v. Goodhue, 2 Metc. 193 (1840), holding that under an indictment charging the defendant with rape on his own daughter, he could be found guilty of incest on proof of carnal knowledge but not by force and against the will of the daughter; Commonwealth v. Fischblatt, 4 Metc. 354, 356 (1842), holding that under an indictment charging an assault with intent to ravish, the defendant could be found guilty of the assault without the intent thus charged; Commonwealth v. Squires, 97 Mass. 59, 60--61 (1867), holding that under an indictment charging that the defendant being a married man committed rape on a female not his wife, he could be found guilty of adultery on proof of intercourse but not by violence and not against the will of the female; and Commonwealth v. Thompson, 116 Mass. 346, 348 (1874), holding that a charge of an assault with intent to commit rape includes a charge of an assault without such specific intent.

Under G.L. c. 278, § 12, the defendant in this case could have been 'acquitted by the verdict of part of the crime charged,' and could have simultaneously also been 'convicted of the residue . . . of the crime, if any, which appears to the court to be substantially...

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