People v. Perry, 93.

• Decision Date: 01 October 1925
• Docket Number: No. 93.,93.
• Citation: 232 Mich. 433,205 N.W. 151
• Parties: PEOPLE v. PERRY.
• Court: Michigan Supreme Court

232 Mich. 433

205 N.W. 151

PEOPLE

v.PERRY.

No. 93.

Supreme Court of Michigan.

Oct. 1, 1925.

Error to Circuit Court, Otsego County; Guy E. Smith, Judge.

Elmer Perry was convicted of rape, and he brings error. Affirmed.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Townsend & Bilitzke, of Gaylord, and Otto & Holland, of Saginaw, for appellant.

Andrew B. Dougherty, Atty. Gen., and Elmer G. Smith, Pros. Atty., of Gaylord, for the People.

STEERE, J.

Defendant was complained of, arrested, tried, convicted, and sentenced in the circuit court of Otsego county to state prison for not more than 10 nor less than 5 years for the crime of feloniously assaulting and carnally knowing one Gladys L. Allen, a female under the age of 16 years.

When brought before the committing magistrate, he stood mute and offered no testimony upon the preliminary examination there had. When arraigned in open court, he also stood mute, and on trial introduced no testimony except that of a physician as to the period of gestation. The assignments of error most strenuously urged and argued are absence of evidence of date and venue before the committing magistrate, and amendment of the information after arraignment.

In the complaint and warrant under which he was arrested it is charged that he did--

‘on the 19th day of May, A. D. 1923, at the township of Livingston, and in the county aforesaid, * * * with force and arms at the township aforesaid, in the county aforesaid, in and upon one Gladys L. Allen a female under the age of 16 years, to wit, of the age of 15 years, then and there being, violently and feloniously did make an assault, on her the said Gladys L. Allen, then and there by force and against her will feloniously did ravish and carnally know, contrary to the form of the statute,’ etc.

At the close of the examination before the magistrate defendant's counsel moved for his discharge on the ground that the complaint and warrant stated separate and distinct offenses under the statute requiring different proof in order to convict, and that neither offense had been properly proven.

The information on which he was arraigned in the circuit court charged him substantially in the language found in the complaint and warrant. Upon his arraignment he stood mute and a plea of not guilty was entered by order of the court, whereupon his counsel moved that the information be quashed and he discharged on the same ground as urged before the committing magistrate, arguing that, while the latter had certified in his return it was made to appear to him that the crime was committed as charged, the testimony taken on preliminary examination and returned by the magistrate was devoid of evidence of the venue as stated in the complaint, warrant, and information, or that said Gladys Allen was under 16 years of age when the alleged offense was committed, and that the two offenses of statutory assault and common-law rape could not be combined in one information. After some discussion the court suggested to the prosecuting attorney that the words ‘with force and arms against the will’ and ‘ravish’ be stricken out, to which the prosecutor did not object and the court so ordered. After a jury had been accepted and sworn and a witness called to testify, defendant's counsel moved that all testimony under the information be excluded, for the reason that defendant had no preliminary examination upon the charge in the information as it then stood, and the testimony taken upon the preliminary examination furnished no ground for the magistrate holding him for trial. Without further detail it can be said that defendant's counsel by abundant objections, motions, and exceptions saved for review all questions of error urged here.

Our applicable statutory provision relating to the offense commonly spoken of as rape is as follows:

‘Sec. 20. If any person shall ravish and carnally know any female of the age of 16 years, or more, by force and against her will, or shall unlawfully and carnally know and abuse any female under the full age of 16 years, he shall be punished by imprisonment in the state prison for life, or for any such period as the court in its discretion shall direct, and such carnal knowledge shall be deemed complete upon proof of penetration only.’ 3 Comp. Laws 1915, § 15211.

It is urged for defendant that the two kinds of offense stated in the statute cannot be jointly charged in one count of the information. In support of this Tiffany's Criminal Law is cited, as giving separate blank forms for each, and the suggestion that ‘it is better to treat them as distinct offenses and draw the indictment accordingly,’ is quoted from McLean on Criminal Law. And the contention is made that, after eliminating the language essential to a proper indictment for rape at common law, it was not only error to proceed with the trial without arraigning defendant under the amended information, but by so changing the wording ‘the prosecution amended its case out of court,’ because it was not shown on the examination that the prosecutrix was under 16 years of age at the date of the alleged intercourse.

Our statute has consolidated the two so-called forms, or methods, of committing rape into one paragraph, as an offense of the same kind and magnitude whichever way committed, punishable by imprisonment for life, or such period as the court in its discretion may determine. They are not distinct offenses. Although that exact word does not appear in the statute, both are rape in principle under the common law.

‘The word ‘rape’ has no technical value which renders its use in such case imperatively necessary, and, if words be employed which describe such offense, they will be taken according to their legal import. If they charge the crime in the language employed by the statute to define rape, they will be taken to charge the crime of rape; and, if they charge an assault with intent to do the act denominated rape, the construction will be the same.' People v. McDonald, 9 Mich. 150.

Of a like statute in essentials it was said in Crosswell v. People, 13 Mich. 427, 87 Am. Dec. 774:

‘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 10 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.’

In the latter case the crime is complete under the statute whether the intercourse is had with force or by consent. People v. Smith, 122 Mich. 284, 81 N. W. 107. The information as filed was not duplicative as to the offense charged. The...