Com. v. Murphy

• Decision Date: 01 January 1896
• Parties: COMMONWEALTH SAME v. MURPHY. SAME v. ENOS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 66

42 N.E. 504

COMMONWEALTH SAME v. MURPHY. SAME v. ENOS.

Supreme Judicial Court of Massachusetts, Bristol.

January 1, 1896

COUNSEL

Andrew J. Jennings, Dist. Atty., for the Commonwealth.

H.J Fuller, for defendants.

OPINION

KNOWLTON J.

These cases may be considered together, as substantially the same questions are raised in both of them.

Under Pub.St. c. 202, §§ 27, 28, the question whether an indictment for an assault with an intent to commit rape upon a female child under the age of 10 years can be maintained, if the child consents to what is done, was very fully considered in Com. v. Roosnell, 143 Mass. 32, 8 N.E. 747, and decided in the affirmative. This case must be deemed to have settled the law in this commonwealth in accordance with the weight of judicial opinion, although there is some conflict of authority in other jurisdictions. The several acts in amendment of section 27, above cited, which raise the age of consent by girls to carnal connection, do not assume to change the nature of an offense to which they relate. One who unlawfully, carnally, knows and abuses a female child under the age of 16 years, is guilty of the same crime, under St.1893, c. 466, as one who committed the offense upon a child under the age of 10 years, when Pub.St c. 202, § 27, were in force. St.1886, c. 305; St.1888, c. 391; St.1893, c. 466. There is no doubt of the intention of the legislature to treat the crime of having carnal connection with a girl under the age of 16 years as rape, even if she gives her full consent so far as she is capable of consenting.

The defendants contend that the statute last cited is in conflict with article 8 of the amendments to the constitution of the United States, and of article 26 of our declaration of rights, because it provides for the infliction of a cruel and unusual punishment. The first of these articles has no application to crimes against the laws of a state. Com. v. Hitchings, 5 Gray, 482. Without implying that article 26 of our declaration of rights is applicable to the statute before us, it is clear that the punishment prescribed is not cruel or unusual in kind.

There is some ground for the contention that the statute is a departure from the principles which lie at the foundation of our ancient law in regard to rape, and which justify the treatment of it as one of the most heinous crimes that can be committed. The legislation is different in character from St.1886, c. 329, and St.1888, c. 311, which were enacted for the punishment and prevention of seduction. But whatever we may think of the policy of a statute that treats a girl of 15 years and 11 months old, however mature she may be in body and mind, as if she were incapable of committing the crime of fornication, and subjects a boy of the same age, with whom she joins in sexual intercourse, to a possibility of the same punishment as if he were guilty of murder in the second degree, the legislature is ordinarily the judge of the expediency of creating new crimes, and of prescribing penalties, whether light or severe, for prohibited acts. We cannot say that the punishment prescribed for this offense, when the girl is nearly 16 years of age, and voluntarily participates in it, is beyond the constitutional power of the legislature to inflict.

The presiding justice was asked to instruct the jury that unless the defendant knew, or had good reason to believe, that the girl was under 16 years of age, he could not be convicted. How far a mistake of fact in regard to the nature of his act may be availed of by a defendant in a criminal case, is sometimes a difficult question to answer. In general it may be said that there must be malus...