State v. Burt

• Citation: 75 N.H. 64,71 A. 30
• Parties: STATE v. BURT.
• Decision Date: 06 October 1908
• Court: New Hampshire Supreme Court

71 A. 30

75 N.H. 64

STATE

v. BURT.

Supreme Court of New Hampshire. Grafton.

Oct. 6, 1908.

Exceptions from Superior Court, Grafton County; Stone, Judge.

Merritt Burt, Jr., was convicted of rape, and brings exceptions. Exceptions overruled.

Marshall D. Oobleigh, for the State.

Fred B. Lang and George W. Pike, for defendant.

BINGHAM, J. The indictment is sufficient. It charges that the respondent, at Haverhill, in our county of Grafton, on the 3d day of August, 1907, unlawfully and carnally knew and abused C. W., a woman child under the age of 15 years, to wit, of the age of 11 years. Section 15, c. 278, Pub. St. 1901, reads as follows: "If any person shall ravish and carnally know any woman, committing carnal copulation with her by force, against her will, or if any man shall unlawfully and carnally know and abuse any woman child under the age of sixteen years, he shall be imprisoned not exceeding thirty years." The indictment in this proceeding is brought under the latter provision of the statute; and it is argued by counsel for the respondent that the word "man" as there used means a male adult, as distinguished from a boy, and is an essential allegation in an indictment charging the offense. But it seems to us that the sense in which the word is used is to be ascertained by considering the mischief or evil to be remedied in the enactment of the law, namely, the prevention of illicit intercourse between the sexes and the consequent evils. This being the purpose of the law, the word "man" must have been intended to apply to and include persons of the male sex who have arrived at the age of puberty, or are capable of committing rape. "There is quite as good reason for curbing the impetuosity of youth as for laying the ban upon men of maturer years." State v. Seiler, 106 Wis. 346, 350, 351, 82 N. W. 167; Kenyon v. People, 26 N. Y. 203, 211, 84 Am. Dec. 177. The history of our statute also shows that the words "any person" and "any man" have been used indiscriminately, without distinction of meaning, and not as descriptive of the offense. Laws (Ed. 1830) p. 137, tit. 27, c. 3, § 6; Rev. St. 1843, c. 214, § C. It was not necessary that the indictment should charge in the language of the statute that the woman child upon whom the offense was committed was "under sixteen years of age." These words simply fix a period in the age of women below which the crime will be committed upon them, whether accomplished with or without their consent. It was first fixed at 10 years. Laws (Ed. 1830) p. 137, tit. 27, c. 3, § 6. In 1887 it was raised to 13 years (Laws 1887, p. 482, c. 99, § 1), and subsequently to 16 years. Laws 1897, p. 30, c. 35, § 1. The allegation in the indictment as to age is sufficiently definite. It gives positive information as to the child's age, and that she was below the age of consent. Bonner v. State, 65 Miss. 293, 3 South. 663; State v. Erickson, 45 Wis. 86.

The request of the respondent that he be tried under the provisions of the juvenile court act regulating the treatment and control of dependent and delinquent children (Laws 1907, p. 120, c. 125), upon the ground that he was a minor under seventeen years of age, was also properly denied. Although his conduct may have been such that in a proceeding before a justice or police court under the provisions of chapter 125 he could have been found to be a delinquent child, it is to be noted that this proceeding is not brought before such a court or under the provisions of chapter 125, but in the superior court under the penal laws of the state, charging ...