Com. v. Hackett

• Decision Date: 08 January 1898
• Citation: 48 N.E. 1087,170 Mass. 194
• Parties: COMMONWEALTH v. HACKETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 194

48 N.E. 1087

COMMONWEALTH v. HACKETT.

Supreme Judicial Court of Massachusetts, Middlesex.

January 8, 1898

This was an indictment in ten counts,--five charging the defendant with carnal knowledge of Celia Martin a female child under 16 years old; the other five charging an assault with intent to unlawfully and carnally know the same person on five different dates. The count charging carnal knowledge described the offense as follows: "That the defendant, on [giving date and place], in and upon one Celia Martin, a female child under the age of sixteen years, to wit, *** feloniously did make an assault, and her, the said Celia Martin, then and there feloniously did unlawfully and carnally know and abuse." In the superior court, before Daniel W. Bond, J., the defendant moved to quash the first five counts of the indictment, for the reason that in each of said counts there was set forth and described more than one offense, and that there was not described in any of the counts, fully and plainly, substantially and formally, any offense known to the law. During the trial the fifth count was nol. pros'd. The jury returned a verdict of guilty on the first, second, third, and fourth counts, not guilty on the sixth, seventh, and eighth, and no agreement on the ninth and tenth counts. The presiding judge overruled the motion to quash, and the defendant contended that the failure to report a verdict on the ninth and tenth counts was a mistrial. A motion in arrest of judgment was also overruled.

COUNSEL

G.A Sanderson, Asst. Dist. Atty., for the Commonwealth.

J.H Ponce, for defendant.

OPINION

LATHROP J.

The contention of the defendant in support of the motion to quash is based upon the argument that, since St.1893, c. 466, the offense of unlawfully and carnally knowing a female child under the age of consent is no longer rape; that an assault should not be charged for an offense under section 2; and that the effect of charging an assault and also the specific offense described in section 2, is to render the first five counts bad for duplicity, they being repugnant to the sense and vague, uncertain, and indefinite. St.1893, c. 466,§ 1, provides: "Whoever ravishes and carnally knows a female by force and against her will shall be punished by imprisonment in the state prison for life, or for any term of years." Section 2 provides: "Whoever unlawfully and carnally knows and abuses a female child under the age of sixteen years shall be punished by imprisonment in the state prison for life or for any term of years, or for any term in any other penal institution in this commonwealth." Section 3 repeals St.1888, c. 391. Pub.St. c. 202, § 27, which follows earlier statutes, provides: "Whoever ravishes and carnally knows a female of the age of ten years or more by force and against her will, or unlawfully and carnally knows and abuses a female child under the age of ten years, shall be punished by imprisonment in the state prison for life, or for any term of years." This section was repealed by St.1886, c. 305, § 2, but section 1 is the same as section 27 of the Public Statutes, except that the word "thirteen" is substituted for the word "ten" in the earlier statute. The word "fourteen" was substituted for the word "thirteen" by St.1888, c. 391; and now, by St.1893, c. 466, § 2, the age of consent is raised to 16 years. There can be no doubt that, prior to the statutes of 1893, an indictment in the present form was good. The offense was rape, and it was proper to allege an assault,...