Com. v. Roosnell

• Decision Date: 22 November 1886
• Citation: 143 Mass. 32,8 N.E. 747
• Parties: COMMONWEALTH v. ROOSNELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 32

8 N.E. 747

COMMONWEALTH v. ROOSNELL.

Supreme Judicial Court of Massachusetts, Worcester.

November 22, 1886

COUNSEL

Pierce & Stiles, for defendants.

Is the offense laid in the indictments, of an assault with intent to carnally know and abuse, known to the laws of the commonwealth? Chapter 202, § 28, Pub.St., provides for an assault upon a female with intent to commit rape. Are the terms "to carnally know and abuse" synonymous with the term "to rape?" Are the two offenses technically the same, differing only in mode of proof? The offense of carnal knowledge and abuse imports that the victim was under 10 years of age, and was a consenting party. The offense of rape implies that the acts done were done without the consent and against the will, imports the use of force and violence, and may be committed upon any female, irrespective of age; that is to say, if the crime in every other respect was complete. Com. v. Fogarty, 8 Gray, 490. The offenses are technically different,--the one, rape, being a common-law offense; the other, carnal abuse, a statutory one. State v. Worden, 46 Conn 363. The offense should have been laid as an attempt to commit the crime of carnally knowing and abusing, under Pub.St. c. 210, § 8, (State v. Pickett, 11 Nev 255;) or a misdemeanor, at common-law, (Reg. v. Martin, 9 Car. & P. 213; Reg. v. Ryland, 11 Cox, Crim.Cas 101.) The evidence shows affirmatively the entire absence of intent on the part of the defendant to carnally know and abuse the children, or either of them, and is not to be distinguished from Rex v. Nichol, Russ. & R.Cr.Cas. 130; Com. v. Merrill, 14 Gray, 417; and the jury should have been instructed that there was no sufficient proof to maintain the charge against the defendant of an intent to carnally know and abuse. Had the offense been laid in the indictment as the technical one of an assault with intent to rape, the second instruction prayed for should have been granted. Com. v. Merrill, ubi supra; Rex v. Lloyd, 7 Car. & P. 318; Reg. v. Wright, 4 Fost. & F. 967; Shannon v. Com., 14 Pa.St. 226. The consent of a child under 10 years is no defense to the substantive crime, because the statute expressly so provides, but is a defense to the assault with intent, because the terms of the statute do not extend to the assault, and because an assault consented to is no assault. Smith v. State, 12 Ohio St. 466; State v. Pickett, ubi supra; Stephens v. State, 34 Alb.Law J. 228; Reg. v. Connolly, 26 U.C.Q.B. 317; Cliver v. State, 45 N.J.Law, 46; Reg. v. Cockburn, 3 Cox, Crim.Cas. 543; Reg. v. Read, Id. 266; S.C. 1 Denison, Cr.Cas. 379, note; Reg. v. Roadley, 14 Cox, Crim.Cas. 463; 44 Vict. c. 45, § 2. The fourth instruction prayed for should have been given. Com. v. Merrill, ubi supra. The fifth instruction prayed for is substantially the rule laid down in Com. v. Choate, 105 Mass. 451; Bish.Crim.Proc. § 1066; Wilder v. Cowles, 100 Mass. 489.

E.J. Sherman, Atty. Gen., for the Commonwealth, cited Com. v. Thompson, 116 Mass. 346; Com. v. Shaw, 134 Mass. 221; Pub.St. c. 202, § 27; Com. v. Sugland, 4 Gray, 7.

OPINION

C. ALLEN, J.

The chief argument for the defendant is that an indictment for an assault upon a female child, under the age of 10 years, with intent to unlawfully and carnally know and abuse her, cannot be maintained without proof that the acts were done without her consent; that the carnal knowledge and abuse of a child is a special statutory offense, distinct from the crime of rape; and that the consent of the child is no defense to the substantive crime, because the statute expressly so provides or implies, but is a defense to the assault with intent, because the terms of the statute do not extend to the assault, and because an assault consented to, is no assault in law; and there are many decisions, both English and American, some of which are cited, which sustain this defense. But it is not a valid defense in this commonwealth.

The statutes upon which the case depends are as follows: Pub.St. c. 202, § 27: "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." Section 28: "Whoever assaults a female with intent to commit rape shall be punished by imprisonment in the state prison for life, or for any term of years, or by fine," etc.

There is, indeed, another statute (Pub.St. c. 210, § 8) which provides that "whoever attempts to commit an offense prohibited by law, and in such attempt does any act towards the commission of such offense, but fails in the perpetration," shall be punished. But the indictments in these cases are not brought under this statute. Indictments for attempts, whether brought under particular statutes, or under the common law, should set forth in direct terms that the defendant attempted to commit the crime; and so are the precedents. Train & H.Prec. 50-53; Whart.Prec. (Amer.) 1046-1052; Com. v. Dennis, 105 Mass. 162; Com. v. Sherman, Id. 169; Com. v. McLaughlin, Id. 460; Christian v. Com., 23 Grat. 954. See, also, Com. v. Thompson, 116 Mass. 346. This statute, therefore, being disregarded, it is to be considered if these indictments can rest upon Pub.St. c. 202, § 28, punishing an assault with intent to commit rape.

In England, the definitions of "rape" have sometimes included the statutory offense of carnal knowledge of a young child. Thus: "Rape is felony, by the common law, declared by parliament, for the unlawful and carnal knowledge and abuse of any woman above the age of ten years, against her will, or of a woman child under the age of ten years, with her will or against her will." 3 Coke, Inst. 60. "Rape is the carnal knowledge of any woman above the age of ten years, against her will, and of a woman child under the age of ten years, with or against her will." 1 Hale, P.C. 628. See, also, page 631. In East, P.C. 436, it is said: "This last offense [viz., unlawful abuse of a child] is not, properly speaking, a rape, which implies a carnal knowledge against the will of the party, but a felony created by this statute, [18 Eliz. c. 7, § 4,] under which the consent or non-consent of the child, under the age of ten years, is immaterial." Other writers have directly, or by implication, included the statutory offense within the term "rape." See 4 Bl.Comm. 212; 1 Gabb.Crim.Law, 832; Roscoe, Crim.Ev. (7th Ed.) 289, 851. But, however it may have been elsewhere, in Massachusetts the offense of unlawfully and carnally knowing and abusing a female child under the age of 10 years is, and for more than 200 years has been, known and designated as "rape."

In October, 1669, the ordinary form of rape being already punishable by existing laws, the following statute was passed: "Forasmuch as carnal copulation with a woman child under the age of ten years is a more heinous sin than with one of more years as being more inhuman and unnatural in itself, and more perilous to the life and well-being of the child, it is therefore ordered by this court, and the authority thereof, that whosoever he be shall commit or have carnal copulation with any such child under ten years old, and be legally convicted thereof, he shall be put to death." This was printed in the edition of 1672 of the Colony Laws, 15, with the marginal note, "Rape of a child." See, also, Ancient Charter, (Ed.1814,) with the same marginal note. These statutes, for the ordinary form of rape, and for the abuse of a child, were, in substance, re-enacted in separate and successive sections in 1692; but by Prov.St.1697, c. 18, entitled "An act against ravishment or rape," both were put into one section, and so they have ever since remained. See 1 State Ed.Prov.Laws, 56, 296. The next statute appears to be that of 1784, c. 68, entitled "An act for the punishment of rape," both offenses being included in the same section; the marginal note in the edition of 1823 being, "Rape punished with death." This was followed by St.1805, c. 97, entitled "An act providing for the punishment of the crime of rape, and for the prevention thereof," in which, by express reference, the offense of carnally knowing and abusing a woman child under the age of 10 years is classified as rape. The later statutes are St.1815, c. 86, (Rev.St. c. 125, § 18,) where the marginal note is, "Rape, or abuse of female child;" Gen.St. c. 160, § 26; Pub.St. c. 202, § 27,--in each of which the marginal note mentions only "rape." In Davis, Crim.Inst. (Ed.1824,) a work long used and relied on in this state, the carnal knowledge of young female children is called "rape." "A rape upon children under the age of ten years, whether with or without their consent, was made a capital felony as early as the reign of Queen Elizabeth." Page 590. See, also, Id. (Heard's Ed.) 673, 668; Bouv.Law Dict. (Eds.1882, 1883,) tit. "Rape;" Com. v. Sugland, 4 Gray, 7.

Where a rape upon a child under the age of 10 years is charged, by carnally knowing and abusing her, it is not necessary to aver or prove that the acts were done against her will or without her consent. The reason is that, from her tender years, she is held in law to be incapable of giving a valid consent to such acts, and the law conclusively presumes that she did not consent. 3 Greenl.Ev. § 211. The rule has always been so from the earliest times, though the reason has not always been stated in this form.

In this commonwealth the statutes punishing an assault with intent to commit a rape also includes both phases of the crime of rape,--the carnal knowledge and abuse of a young female child, as well as a rape committed upon a grown woman by actual force...