Rookey v. State

• Decision Date: 30 November 1897
• Citation: 70 Conn. 104,38 A. 911
• Parties: ROOKEY v. STATE.
• Court: Connecticut Supreme Court

38 A. 911

70 Conn. 104

ROOKEY

v. STATE.

Supreme Court of Errors of Connecticut.

Nov. 30, 1897.

Error from superior court, Fairfield county; Charles B. Andrews, Judge.

Joshua Rookey was convicted of an attempt at rape, and brings error. Affirmed.

The writ recites the material parts of the information, plea, verdict of the jury, and judgment in the superior court. The information was in the usual form of an information for rape. The verdict and judgment were recorded as follows: "The prisoner appeared, and, for plea, said 'Not guilty'; and, after a full hearing, the case was committed to the jury, who returned a verdict of 'Guilty' of the crime of 'attempt at rape,' under the said information. It is therefore considered by the court that the prisoner is guilty of the crime 'attempt at rape,' under the said information. The court thereupon sentenced the said prisoner to be confined," etc. The errors specially assigned were, in substance: (1) The court erred in not holding the verdict to be a special verdict, and, as such, omitting the essential facts necessary to constitute any offense, and to warrant the rendition of any judgment. (2) The court erred in rendering judgment, and in not holding that the verdict was equivalent to a verdict of "Not guilty," because the verdict designated no statutory or common-law offense, and did not find the defendant guilty of any offense. The answer of the state to the writ was, "Nothing erroneous."

James T. Lynch, for plaintiff in error.

Galen A. Carter, Jr., Asst. State's Atty.

HAMERSLEY, J. (after stating the facts). The verdict complained of is not a "special verdict," and so the argument of the plaintiff in error in respect to the requirements of such a verdict is not pertinent to the case. The verdict in a criminal case is either general, on the whole charge; or partial, as to a part of the charge, as when the accused is convicted on one count of an indictment, or upon one part of a count capable of division, or of an offense of inferior degree included in the accusation of a higher crime; or special, by which the facts of the case are put upon record, and the law is submitted to the court. The rule that requires a special verdict to state all the circumstances constituting the offense does not apply to either a partial or a general verdict. Both must answer the issues raised by the indictment and the plea. Both must state with certainty the general conclusion of guilt or innocence, but neither should detail the facts which support that conclusion. 2 Swift, Dig. p. 13; 1 Chit. Cr. Law, 636; 1 Bish. Cr. Proc. § 832. The only special requirement discussed in the books as to the form of a partial verdict convicting one of an offense included in the accusation of a crime of higher degree is that the verdict shall find the accused not guilty of the greater as well as guilty of the lesser crime. The failure to do so was once deemed by the English law a fatal defect; but the rule was questioned by Chitty as obsolete in his day (1 Cr. Law, 641); and when Judge Swift, in his Digest, spoke of the acquittal of the greater crime as necessary to the validity of the verdict, he doubtless had in mind the old rule, and overlooked the more recent authorities cited by Chitty. It is evident that a verdict of conviction of the lesser crime must involve an acquittal of the greater, and that this result should be directly stated; but a failure to do so is not a fatal defect. In the case before us the crime charged includes the lesser crime of attempt at rape, and the partial verdict rendered is legally equivalent to, "Not guilty of rape, but guilty of attempt at rape."

The claim is made that this partial verdict cannot support any judgment, or should be treated as an acquittal, because the crime of inferior degree of which the accused might properly have been convicted is incorrectly described, the only proper description of this crime being "an assault with actual violence upon the body of a female with intent to commit a rape," using the words of the statute (section 1407) prescribing the punishment for the crime. This claim assumes that section 1107 of the General Statutes does not simply fix the punishment of the common-law offense of attempt at rape, but creates a statutory offense previously unknown, whose legal designation must be co-extensive with the statutory definition. Such seems to have been the ground of decision in the Ohio case cited,—Fox v. State, 34 Ohio St. 377. The Ohio Criminal Code defined the crime of rape. Attempt at rape was not an offense known to the law; but the statute provided that "whoever assaults another, with intent * * * to commit rape * * * upon the person so assaulted, shall be imprisoned," etc. The court held that the statute was the only provision of law making an attempt to commit rape an offense; that the words "attempt to commit rape," having no legal meaning, must have been used in the verdict in their ordinary meaning, and are not in their ordinary meaning the exact equivalent of the words "assault with intent to commit rape." Therefore, in returning a verdict of "Guilty of attempt to commit rape," the jury might have convicted the accused of an "attempt" in the ordinary meaning of the word, which was not a criminal offense. From this conclusion Boynton, J., dissented. Assuming a similar construction of our statute to be permissible, we think the verdict in the case a valid one.

The principle affecting the form of a general or partial verdict of "Guilty" is that, as finally rendered and recorded, it shall clearly and certainly designate the crime charged in the indictment for which punishment is to be inflicted. The general verdict of "Guilty," separated from its surroundings, is wholly indefinite; but, as actually rendered, it is certain. The clerk asks the jury whether the accused is "guilty of the crime whereof he stands indicted or informed against, or not guilty," and, if the foreman answers "Guilty," the clerk then says: "Gentlemen of the Jury: Hearken to your verdict as the court have recorded it. You, on your oaths, do say that A. B. is guilty of the crime whereof he stands indicted or informed against; so say you all." The assent of the jury to this statement constitutes the actual rendering of the verdict. 2 Swift, Dig. 413; Appeal of Watertown Ecclesiastical Society, 40 Conn. 230, 233; State v. Hoyt, 47 Conn. 518, 533. So, in the rendition of a partial verdict, the general statement by the foreman of guilt of the inferior crime is limited by the assent of the jury to the verdict as stated by the clerk. In this case the verdict assented to by the jury was, "Guilty of the crime of attempt at rape as charged in the information against him;" and the statutory element of "assault with actual violence," being included in the charge referred to, is included in the verdict. We must assume that in every case this established procedure has been followed, unless the contrary appear from the record. The record before us recites the verdict rendered as, "Guilty of the crime of attempt at rape under the said information." Such a verdict complies with the essential requirements of clearness and certainty. It is mere trifling to suggest that possibly the jury might have meant that the accused was guilty of some attempt which was not a crime, or which was not an attempt to commit the crime of rape, as charged against him in the information. We think, however that our decision should be put on a broader ground, to wit, the language used by the foreman in stating the finding of the jury, "Guilty of attempt at rape," is in itself an appropriate legal form for announcing a conviction of the inferior crime charged in the information, just as truly as the single word "Guilty" is the proper form for announcing a conviction of the greater crime.

It is not true that section 1407 creates a new statutory offense. By the common law of this state, rape is a crime, and assault with intent to commit rape is a crime. Each has a well-defined meaning, which has not been altered by statute. The latter crime is properly designated either as an "attempt to commit rape" or as an "assault with intent to commit rape." Both names have received the sanction of this court, and each is a correct legal designation of the crime. The foundation of our common law in respect to crimes was laid at the establishment of our commonwealth, in 1630. The English common law as then existing was not adopted here. 1 Col. Rec. 36, 138, 509; Laws New Haven Colony 1656, pp. 12, 13; 2 Col. Rec. 134; 5 Conn. Hist. Soc. Col. 491; 4 Col. Rec. 412; 6 Col. Rec. 144; 8 Col. Rec. 578; 12 Col. Rec. 423; Preface to Revision of 1672; Revision 1750, p. 1; Revision 1784 (Ed. 1786) pp. 1, 2, 67; 1 Root, XIII., XIV.; Holmes v. Williams, 1 Root, 335, 343; Revision 1821, p. 177, note; Fitch v. Brainerd, 2 Day, 163, 189; Baldwin v. Walker, 21 Conn. 167, 180; State v. Keena, 64 Conn. 212, 214, 215, 29 Atl. 470.

The underlying theory of the Connecticut law and of the English law was the same: Acts in violation of the public peace and of the rules prescribing the duties of individuals to the state and to each other, as settled by universal acceptance, are offenses. Where these rules are not formulated by statute, they may be declared by courts; and a "common law" is developed in the process of so regulating the application of this theory, through legislation and judicial decisions, as to produce a reasonable and defined system of jurisprudence. The main difference lay in the fact that Connecticut referred to "Jehovah, the Great Lawgiver," to the "Word of God," to the "justice and equity held forth in that...