People v. Crosswell

• Decision Date: 10 October 1865
• Citation: 13 Mich. 427
• Court: Michigan Supreme Court
• Parties: The People v. Valentine Crosswell

13 Mich. 427

The People v. Valentine Crosswell

Supreme Court of Michigan

October 10, 1865

Heard July 7, 1865 [Syllabus Material]

On exceptions from Kalamazoo circuit.

The facts will be found sufficiently stated in the opinion.

Verdict set aside and a new trial granted.

N. A Balch, for plaintiff in error:

1. An assault with intent to commit rape always includes the design to use force to accomplish the object at all hazards on the part of the person making the assault, and of resistance of the most forcible kind on the part of the person assaulted: Rex v. Lloyd, 7 Car. and Payne, 589; 2 Swan 394.

In this case there is not the slightest evidence that any force was used or intended, or that any resistance was offered or intended. Where, then, is the assault, or where the intent? No force was needed, none intended.

The intent, in a case like this, constitutes the crime; the assault was simply the means. Without these two essentials, the crime charged could not have been committed: 4 Leigh 645.

There was no such offense at common law, as I have been able to discover. Our legislators have not created any, and if ever they do, they will then require that the pleader shall allege the character and condition of the female, the same as he is bound to in a case of a child under ten years of age: Comp. Laws, 1506-1507, § 20, P 5730; Barbour's Magistrate's Criminal Law, 69; 1 Russel on Crimes, 565; People v. Enoch, 13 Wend. 159.

2. The court erred in not charging the jury that if they found actual coition, then the intent merged in the offense actually committed. The respondent insists that the information in this cause is at common law, and not an information under the statute. The statute provides that if any person shall assault any female with intent to commit the crime of rape; and rape is defined to be ravishing and carnally knowing a female of the age of ten years and over, by force, and against her will.

It will be seen by this statute that carnally knowing and abusing a female child, under the age of ten years, is not a rape. No ravishment is included in the offense. It simply consists in knowledge. Apply the same principle to a case like this, and no ravishment is included; it is simply carnal knowledge. It is not by force, nor against her will.

3. The charge of the court under the seventh assignment of errors, the respondent contends, was wrong in this, that it instructs the jury that if the female was suffering under such a diseased state of mind as to have no intelligent will to oppose, then the crime charged was committed--a proposition, we think, wholly untenable. The crime might be fornication, if a single woman; adultery, if married; or it might be rape, if accomplished with force. The law never presumes a man to intend to commit an enormous crime when his acts themselves may just as well be explained in the one of less aggravation. The only legitimate presumption is, that he intended to commit adultery; and this presumption exactly corresponds with the facts. The court should, therefore, have instructed the jury, if they found the intent was simply to have sexual intercourse with the woman, and not to force her, then he must be acquitted. It by no means follows that the crime charged was committed, as the court virtually instructed the jury, when all the facts and circumstances are more applicable to the commission of a different and less aggravated offense: Rex v. Jackson, Tr. Term R., 1822; Russel v. Ryan, 487; Regina v. Saunders, 8 C. & P., 266; Rex v. Williams, 8 Car. and Payne, 286; Rex v. Stanton, 1 Car. and Kerwan, 415; Commonwealth v. Goodhue, 2 Met. 193.

When the offense, as charged in this case, was the intent, that criminal intent must be proved, whatever may have been the mental condition of the female; and the allegation of insanity was no excuse for not proving the intent and force. Rex v. Stanton, Car. and Ker. Rep., 215.

A. Williams, attorney-general, for the people:

1. Mrs. Crittenden, at the time the offense was committed was insane, and, therefore, incapable of consenting. In that regard, she was like a female child under the age of ten years. In this case, then, resistance by her, or violent aggression by him, in any degree whatsoever, is not necessarily an element of the offense. And this, it cannot be said, is asking for the creation of a new principle, but only its application, in this state, as it has been elsewhere, to a class of cases worthy of protection: Stephen v. The State, 11 Geo. 225; 24 U. S. D., 510, §§ 1, 3, 4; 1 Bishop Cr. L., §§ 28, 342-3, and cases cited; 2 Bishop Cr. L., § 939, and cases cited; 1 Whart. Cr. L., §§ 1141-3; The People v. McGee, 1 Denio R., 19; State v. Farmer, 4 Ired. 224; 4 Blackst. Comm., 212; Reg. v. Fletcher, 8 Cox Cr. Cas., 131; 5 Jur. N. S., 179; Rex v. Regan, 2 Cox Cr. Cas., 115; State v. Cron, 10 West. L. J., 501; McNamara's Case, Oakley, 521; 2 Bennett & Heard's Mass. Digest, 542, note 1; 3 Greenleaf's Ev., §§ 211-12; Dean's Med. Juris., 34-5.

Cooley, J. Campbell and Christiancy, JJ. concurred, and Martin, Ch. J. concurred in the result.

OPINION

Cooley J.:

The defendant was informed against in the circuit court for the county of Kalamazoo for rape, alleged to have been committed upon one Mrs. Crittenden. The information was, in all respects, in the usual form.

On the trial, evidence was adduced that four persons, walking in the road together through or past a piece of woods, saw Mrs. Crittenden and the defendant in the road together a few rods off; Mrs. Crittenden, at the time, lying upon her back with her clothes up to her waist, and the defendant on his knees before her; that he did not have hold of her, or seem to be exercising any control, nor she to be making any resistance; that sexual intercourse took place between them, after which, on some slight noise being made, the defendant got up and ran off, while Mrs. Crittenden came out towards the witnesses smiling, and followed them to a house in the neighborhood where they were going to visit.

The prosecution then offered evidence to show that Mrs. Crittenden at the time was insane. The defendant objected to this as irrelevant, and also because, if insanity was a material fact, it should have been alleged in the information. The court overruled the objection, and the defendant excepted.

The evidence given to establish insanity showed that Mrs. Crittenden was forty-eight or forty-nine years of age, in apparent good physical health, of good size and seeming strength; that she had been in the insane asylum at Kalamazoo the preceding year, but was, at this time, residing at home with her husband; that she worked some at home, but appeared to be uneasy, and said she ought to be doing something, but did not know what to do. The most pointed testimony was that of E. H. Van Dazen, the physician, who was in charge of the insane asylum while Mrs. Crittenden was there, who testified that she was in a state of dementia--not idiotic, but approaching towards it; that she had vague apprehensions of injury, and a predisposition to be with men--a morbid, rather than an active desire, to have sexual intercourse; that that was one way in which her insanity manifested itself; that she was dismissed from the asylum not much improved, but under better control, and with more method in her conduct; that her general health was pretty good, and she was of good size, and apparently a strong woman. The witness did not think she had intelligent understanding at the time the crime was said to have been committed.

The court below, at the conclusion of the case, charged the jury that if the woman was so suffering from mental disease at the time, as to have no intelligent will to oppose the act of the prisoner, and he knew of this her condition, then her failure to oppose him, or her seeming acquiescence, could not be urged against a conviction; and that if he made the attempt upon her person with the intent to have carnal intercourse, and she did not resist because she had no intelligent will to oppose, he was guilty of the offense charged. Under these instructions the jury returned a verdict of guilty.

The exceptions present to us questions which we do not find distinctly passed upon in any adjudged case. The main question, and the only one we deem it necessary to discuss, is, whether the carnal knowledge of a woman non compos mentis, under the circumstances disclosed in the testimony above stated, can be punished as rape under the statutes of this state.

Rape is defined to be "the carnal knowledge of a woman by force and against her will:" 1 East. P. C., 434; 4 Bl. Com., 210. The statute providing for its punishment in this state--§ 5730 of Compiled Laws--is in the following words: "If any person shall ravish and carnally know any female of the age of ten years or more, by force and against her will, or shall unlawfully and carnally know and abuse any female child under the age of ten years, he shall be punished," etc. This statute does not change the nature of the offense as it stood at the common law, nor does it describe two distinct offenses, but the carnal knowledge of the female child under the age of ten years is held to be rape, on the ground that, from immaturity and want of understanding, the child must be deemed incapable of assenting, and the act presumed to be the result of force: People v. McDonald, 9 Mich. 150; Commonwealth v. Sugland, 4 Gray 7. And it is insisted in this case that an insane woman, or one not mentally competent to exercise an intelligent will, is in the same position, as respects this crime, as a child under ten years of age, and that carnal knowledge of her person would constitute the offense notwithstanding her acquiescence.

If the case before us can...