Commonwealth v. Thompson

• Decision Date: 28 November 1874
• Citation: 116 Mass. 346
• Parties: Commonwealth v. George W. Thompson
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

116 Mass. 346

Commonwealth v. George W. Thompson

Supreme Court of Massachusetts

November 28, 1874

Barnstable. Indictment for an assault with intent to ravish averring that on November 10, 1873, the defendant, with force and arms, at Mashpee, "in and upon the body of Susan W Attaquin feloniously an assault did make, and her the said Susan W. Attaquin did then and there beat, bruise, strike and wound, with intent then and there, her the said Susan W Attaquin feloniously and violently to ravish and carnally know, by force and against her will."

In the Superior Court, before the jury were empaneled or sworn, the defendant moved to quash the indictment for the following reasons: "1. That it charges two distinct crimes, to wit, assault and battery, and assault with intent to ravish, and is therefore bad for duplicity. 2. That it charges the defendant with an assault with intent to ravish, and also with a battery, not alleged nor appearing to be a component part of said assault with intent to ravish, and is therefore bad for duplicity." Putnam, J., overruled the motion; and the defendant alleged exceptions.

At the trial the government introduced evidence tending to show that early in the evening of November 10, 1873, the defendant with several others set out to walk from Mashpee towards Cotuit; that after accompanying them for about half a mile he left them, without assigning any reason, and returned to the neighborhood of the place from which they had set out, that, at soon after half past six o'clock, when the defendant might have been in the vicinity, the prosecutrix left a store about half a mile from her home, accompanied by her son about eight years of age, to return to her house, and in so doing left the highway, crossed the fence and entered a path which led through a field and through small trees; that a man passed them hastily, and that, when they reached a point at some little distance from the road, a man came up to the prosecutrix and struck her to the ground; that he then pursued the boy, and returning to the prosecutrix, who had risen to her feet, felled her again, got down on the ground by her, and holding her down, pulled up her clothes, and began to uncover her person; that she tried to get up when he struck her in the face and tried still to uncover her, put his hands on her legs and pinched them just above the knees, so that they were discolored for some time; that she called out "God help me," and "Where is Mr. Hammond, he was just behind us," when the assailant got up and ran away. The prosecutrix testified that it was the defendant who assaulted her. This was all the evidence tending to show that the defendant assaulted the prosecutrix with intent to ravish.

After the evidence was all in, the defendant asked the judge to instruct the jury as follows: "1. That there was no evidence to warrant a verdict of guilty of assault with intent to ravish. 2. That the evidence tended to show an attempt to ravish, if any crime beyond an assault and battery."

The judge declined so to instruct the jury, but gave them instructions as to what would constitute rape, and an assault with intent to commit rape, in a manner not excepted to; and also instructed them that under an indictment of this character comprising two charges, an assault, and an assault with a felonious intent, and that under this indictment, if the evidence did not satisfy them that the defendant's intent was to ravish, but only to do something which came short of that, and they believed that he assaulted her, they might find him not guilty of the full crime charged, but only guilty of an assault upon her person; but if they found...