Moody v. Lovell

• Decision Date: 06 October 1950
• Citation: 75 A.2d 795,145 Me. 328
• Parties: MOODY v. LOVELL.
• Court: Maine Supreme Court

Page 795

75 A.2d 795

145 Me. 328

MOODY v. LOVELL.

Supreme Judicial Court of Maine.

Oct. 6, 1950.

Christopher S. Roberts, Rockland, for petitioner.

Ralph W. Farris, Atty. Gen., John S. S. Fessenden, Deputy Atty. Gen., for State of Maine.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY, and WILLIAMSON, JJ.

MERRILL, Justice.

On report. At the term of the Superior Court held in Skowhegan, in the County of Somerset, on the second Tuesday of January, A.D. 1946, the petitioner, Edward H. Moody, Jr., was found guilty on an indictment which alleged that on April 10, 1944, at Pleasant Ridge Plantation, in said County, he:

'on one Catherine Beaudoin, a female child under fourteen years of age, to wit of the age of thirteen years, feloniously did make an assault, and her the said Catherine Beaudoin, then and there feloniously, and unlawfully, did attempt to carnally know and abuse, against the peace of the State and contrary to the form of the statute in such case made and provided.'

Upon his conviction he was sentenced to imprisonment in the State Prison for a term of twenty years and was duly committed thereto in execution of said sentence. At the time of the institution of the habeas corpus proceedings here in question, he was in the custody of the defendant, J. Wallace Lovell, as Warden of the State Prison, in pursuance of said sentence.

On March 3, 1950 Moody filed a petition for a writ of habeas corpus. By order of a Justice of the Superior Court the writ of habeas corpus was issued and Moody brought before said Justice for a hearing thereon. The defendant sought to justify his detention of the prisoner under the order of commitment issued in pursuance of the foregoing sentence. The sole question in issue was the validity of the sentence. The case was reported to this Court for final decision with the following stipulation:

'The sole question being whether the indictment, conviction and record upon which said petitioner was sentenced to imprisonment, at hard labor, for twenty (20) years in the State Prison at Thomaston, in the County of Knox was authorized and was a legal sentence, or whether the indictment only alleged an aggravated assault and upon conviction for which only a sentence of a maximum of five years was authorized.'

The issue is whether the indictment sufficiently charges an assault with an intent to commit a rape on a female child under the age of fourteen years in violation of R.S. Chap. 117, Sec. 12, or charges an assault in violation of Chap. 117, Sec. 21. If the indictment sufficiently sets forth a violation of the statute providing a punishment for an assault with intent to commit a rape the sentence imposed was authorized by Sec. 12, supra, and the writ of habeas corpus must be discharged. On the other hand, if the indictment charges only an assault in violation of Sec. 21, supra, even though the assault was of a high and aggravated nature, the maximum sentence which could have been imposed was imprisonment for five years. With the statutory time off for good behavior which has been credited to him, the petitioner would have fully completed and served a sentence of five years on February 24, 1950. If he could have been sentenced only for violating the provisions of Sec. 21, supra, he should be discharged because he has already served the maximum sentence which could have been imposed therefor.

R.S. Chap. 117, Sec. 12 is as follows: 'Assault with intent to commit rape; penalty. Whoever assaults a female of 14 years of age or more, with intent to commit a rape, shall be punished by a fine of not more than $500, or by imprisonment for not more than 10 years. If such assault is made on a female under 14 years, such imprisonment shall be for not less than 1 year, nor more than 20 years.'

R.S. Chap. 117, Sec. 10 is as follows:

'Rape, definition; penalty. Whoever ravishes, and carnally knows, any female of 14 or more years of age, by force and against her will, or unlawfully and carnally knows and abuses a female child under 14 years of age, shall be punished by imprisonment for any term of years.'

The word 'rape' as used in Sec. 12 means the offense for which punishment is provided in Sec. 10. It includes not only the ravishment of a female of 14 or more years of age by force and against her will but also the unlawful carnal knowledge and abuse of a female child under the age of 14 years. The question of whether or not carnal knowledge and abuse of a female child under the age of consent is rape or a distinct statutory offense sometimes denominated 'statutory rape' is one upon which text writers and learned justices have differed. The question here is not whether the offense of unlawfully carnally knowing and abusing a female under the age of 14 years is or is not rape within the strict meaning of that word. The question here is whether or not the Legislature by the use of the word 'rape' in Sec. 12 intended thereby to include the offense punishable under Sec. 10 whether the same be perpetrated on a female over 14 years of age by force and against her will or by the unlawful carnal knowledge and abuse of a female child under the age of 14 years.

Sections 10 and 12 of R.S. Chap. 117 have their sources in statutory provisions of the mother Commonwealth of Massachusetts in force long before and at the time of the separation. A complete history of the Massachusetts legislation prior to the separation is to be found in the case of Commonwealth v. Roosnell, 143 Mass. 32, 8 N.E. 747. The statutes in existence at the time of the separation in all essentials were re-enacted in this State in Laws of Maine 1821, Chap. 3, Secs. 1, 2, 3 and 4. Except for changes in the severity of punishment and the raising of the age of consent, first to 13 years, and then to 14 years, all of the essential elements of Sec. 10 of the present law are the same as those in Sec. 1 of said Chap. 3 of the Laws of 1821, and except for the same changes the provisions with respect to an assault on a female child under the age of 14 years with intent to commit a rape in Sec. 12 of the present law are the same as those in P.L.1821, Chap. 3, Sec. 4.

In the case of Commonwealth v. Roosnell, supra [143 Mass. 32, 8 N.E. 751], after reviewing the history of the Massachusetts statutes the Massachusetts court said:

'Rev.St. c. 125, § 18, provides for the punishment of any person who should ravish and carnally know any female of the age of 10 years or more, by force and against her will, or should unlawfully and carnally know and abuse any female child under the age of 10 years; and in section 19 provided for the punishment of any person who should 'assault any female with intent to commit the crime of rape.' No other provision was made for assault upon a child with intent to carnally know or abuse her, and no mention was made by the commissioners of any intention to change the law, by omitting altogether all provisions for this offense. It is apparent that section 19 was intended to be as comprehensive as St.1805, c. 97, § 3, and St.1815, § 86, both of which are referred to in the margin; and that the offense of assaulting a young female child, with intent unlawfully and carnally to know and abuse her, was included under the description of assaulting 'any female with intent to commit the crime of rape.' The language of Gen.St. c. 160, § 27, and Pub.St. c. 202, § 28, is, in substance, the same, and bears the same construction.

'It thus appears that the legislature intended by Pub.St. c. 202, § 28, to punish, as a criminal offense, an assault upon a female child, under the age of 10 years, with intent carnally to know and abuse her.'

To this construction of the Massachusetts statutes by the Massachusetts court we give our unqualified approval, and we construe our own similar statutes derived from the same previous legislation in force here before the separation in the same way.

The changes made by the amendments raising the age of consent of the female child first to 13 years and then to 14 years should not and do not change the construction of the phrase 'with intent to commit a rape'. No changes were made in the provisions of the statute except with respect to the age of the female child. In each instance when the age of consent was raised in the statute punishing the crime of rape, a corresponding raise in the age of consent was made in the section punishishing assault with intent to commit a rape. See Public Laws 1887, Chap. 127, Secs. 1 and 2 and Public Laws 1889, Chap. 180, Secs. 1 and 2.

The phrase 'with intent to commit a rape' as used in R.S. Chap. 117, Sec. 12 means an intent to commit those acts punishable under Sec. 10, including unlawfully and carnally knowing and abusing a female child under 14 years of age.

An assault with intent to commit a rape upon a female child under 14 years of age requires the specific intent to unlawfully and carnally know and abuse such female child. As the statutory crime of assault with intent to commit a rape requires proof of a specific intent, the long established rules of criminal pleading require that the indictment set forth that the assault was made with the required specific intent. Galeo v. State, 107 Me. 474, 78 A. 867. The crime interdicted by Sec. 10 is 'unlawfully and carnally knowing and abusing' and the indictment for assault with intent to commit that crime must set forth that the assault was made with such intent.

The indictment here in question does not use the words 'with the intent' but after alleging the making of the assault continues 'and her the said Catherine Beaudoin, then and there feloniously, and unlawfully, did attempt to carnally know and abuse, against the peace of the State and contrary to the form of the statute in such case made and provided.' The question upon which the decision of this case turns is whether or not the foregoing allegation in the indictment sufficiently sets forth the required specific intent.

In the case...