People v. McDonald
| Decision Date | 22 January 1861 |
| Citation | 9 Mich. 150 |
| Court | Michigan Supreme Court |
| Parties | The People v. Duncan McDonald |
Heard January 9, 1861
On exceptions from the recorder's court of Detroit.
The information charged the defendant that he did "in and upon one Margaret Brown, a female child under the age of ten years, to wit: of the age of seven years, unlawfully make an assault, and her, the said Margaret Brown, beat, wound, and ill-treat, with intent her, the said Margaret Brown unlawfully, feloniously, and carnally to know and abuse.
There was proof that defendant was twice on a bed with the child Margaret Brown, in indecent positions, the child not objecting.
The defendant asked the court to instruct the jury, among other things, that when actual consent is given, there can be no assault, and that as carnal knowledge implies assent, this waives the assault. This instruction was refused. Also, that if the jury should believe the defendant twice did what he intended to do, unmolested, and that the child was unharmed they must find the defendant did not intend to commit the crime, and must discharge him. This instruction was given but with the qualification, that though acquitted of the main charge, he might be convicted of assault and battery. The defendant also insisted that the information charged no offense known to the law.
The jury found the defendant "guilty of an assault and battery, but not with an intent to carnally know and abuse."
Judgment rendered upon the verdict.
Larned & Eddie, for defendant:
There is no such offense known to the common law as an assault with intent to carnally know and abuse; and unless the carnal knowledge is proved, the party must be discharged: 8 C. and P., 531, 529; 6 C. and P., 368; 7 C. and P., 795; 9 C. and P., 213; 2 C. and K., 957; Rose. Cr Ev., 802; 1 Russ. Cr. L., 695.
When actual consent is given, there can be no assault, and as carnal knowledge implies consent (2 Arch. Cr. L., 315), this negatives the assault: 2 Mood. C. C., 123, 166; 9 C. and P., 722; I bid., 215; 2 C. and K., 341.
No such offense as an assault with intent to carnally know, etc., is recognized by our statute: Comp. L., § 5730. The New York statute is different, and made the carnal knowledge of a female child under ten years of age rape: 2 R. S. of N. Y., 820; 19 Wend. 201; 1 Hill 351.
C. Upson, Attorney-General, for the people:
The carnal knowledge of a female under ten years of age was rape at the common law, the female being incapable of consent: 1 Hale P. C., 631; 4 Bl. Com., 163 (212); 1 Hill 351; 4 Harr. 566; 11 Geo. 225. And it is also made rape by the statute.
As this case comes to us upon exceptions, and not by writ of error, we can only look into those matters which do not "appear of record." The sufficiency of the information is, therefore, not before us.
Whether there is such an offense known to the common law, as an assault with intent carnally to know and abuse, or not, were it questionable, is immaterial; for it is very obvious that there is such an offense known to our statute. Section 5730 of Comp. Laws enacts that, "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. Both these offenses are rape, as they come within the common law definition of that offense. [*] The distinction between them relates solely to the character and amount of proof required to convict of the offense. Force and want of consent must be satisfactorily shown in the case of carnal knowledge of a female of the age of ten years or more, but they are conclusively presumed in the case of such knowledge of a female child under that age, and no proof will be received to repel such presumption.
The next section (§ 5731), which provides that "if any person shall assault any female with intent to commit the crime of...
To continue reading
Request your trial
-
People v. Nyx
...it is not a necessarily included lesser offense of CSC I, is still "inferior" to CSC I. As early as 1861, this Court pointed out in People v. McDonald15 that "It is a general rule of criminal law, that a jury may acquit of the principal charge, and find the prisoner guilty of an offense of ......
-
People v. Jones
...greater does Not preclude the lesser from being included within the greater. This rule was enunciated in Michigan in 1861 in People v. McDonald, 9 Mich. 150 (1861), where the Court stated that a defendant indicted for assault with intent to commit murder could be convicted of 'an assault, o......
-
People v. Cornell
...may acquit of the principal charge, and find the prisoner guilty of an offense of lesser grade, if contained within it." People v. McDonald, 9 Mich. 150, 153 (1861). 5. People v. Cazal, 412 Mich. 680, 683, 316 N.W.2d 705 (1982), limited the Chamblis misdemeanor cutoff rule to jury trials. I......
-
State v. Fujita
...Vermont, Virginia, Washington and Wisconsin. The following cases are also in point: Territory v. Keyes, 5 Dak. 244, 38 N.W. 440; People v. McDonald, 9 Mich. 150; Hays v. People, 1 Hill 351; Singer v. People, 13 Hun 418; Brown v. State, 65 Tenn. 422, 6 Baxt. 422; People v. Lourintz, 114 Cal.......