State v. Clukey

• Decision Date: 10 October 1951
• Citation: 83 A.2d 568,147 Me. 123
• Parties: STATE v. CLUKEY.
• Court: Maine Supreme Court

Page 568

83 A.2d 568

147 Me. 123

STATE v. CLUKEY.

Supreme Judicial Court of Maine.

Oct. 10, 1951.

Louis Villani, Milo, for the State.

Bartolo M. Siciliano, Dexter, for defendant.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY, and WILLIAMSON, JJ.

NULTY, Justice.

This case comes before us from the Superior Court of Piscataquis County on exceptions by the respondent to the denial of his motion for a directed verdict and to the admission of certain exhibits and testimony offered by the State.

The respondent was indicted by the Grand Jury of Piscataquis County at the September Term, 1950, of the Superior Court of the crime of assault with intent to commit rape as defined under Chap. 117, Sec. 12, R.S.Me.1944. The indictment, omitting the formal parts, charges that the respondent 'on the twenty-second day of April, A.D. 1950 at Guilford in the County of Piscataquis and State of Maine, feloniously did assault one Althea A. Bearce, a female under the age of Fourteen years, to wit, of the age of twelve years, with intent her, the said Althea A. Bearce, violently, by force and against her will, feloniously and unlawfully to ravish and carnally know and abuse.'

One of the issues raised by the bill of exceptions is whether the indictment sufficiently charges as assault with an intent to commit a rape on a female child under the age of fourteen years in violation of R.S.1944, Chap. 117, Sec. 12, or charges an assault and battery. To decide this issue we must examine R.S.1944, Chap. 117, Sec. 10 and Sec. 12, relating to the crime of rape. R.S.1944, Chap. 117, Sec. 12, is as follows: 'Sec. 12. Assault with intent to commit rape; penalty. R.S. c. 129, § 23. Whoever assaults a female of 14 years of age or more, with intent to commit a rape, shall be punished by a fine of not more than $500, or by imprisonment for not more than 10 years. If such assault is made on a female under 14 years, such imprisonment shall be for not less than 1 year, nor more than 20 years.'

R.S.1944, Chap. 117, Sec. 10, is as follows: 'Sec. 10. Rape, definition; penalty. R.S. c. 129, § 16. Whoever ravishes, and carnally knows, any female of 14 or more years of age, by force and against her will, or unlawfully and carnally knows and abuses a female child under 14 years of age, shall be punished by imprisonment for any term of years.'

To the indictment the respondent entered a plea of not guilty and after trial the jury returned a verdict of guilty.

In Moody v. Lovell, 1950, 145 Me. 328, 75 A.2d 795, this court had occasion to consider the essential requisites of an indictment charging assault with intent to commit rape on a female under the age of fourteen years. We held in that case that the word 'rape' as used in Sec. 12 of R.S.1944, Chap. 117, supra, means the offense for which punishment is provided in Sec. 10, supra, of the same chapter which defines rape. It includes not only the ravishment of a female of fourteen or more years of age by force or against her will but also the unlawful carnal knowledge and abuse of a female child under the age of fourteen years. We further held that the phrase 'with intent to commit a rape' as used in R.S.1944, Chap. 117, Sec. 12, means an intent to commit those acts punishable under Sec. 10, including unlawfully and carnally knowing and abusing a female under fourteen years of age. We further held that an assault with intent to commit a rape upon a female child under fourteen years of age requires the specific intent to unlawfully and carnally know and abuse such female child. We further held that the statutory crime of assault with intent to commit a rape requires proof of a specific intent and that the indictment under the long established rules of criminal pleading requires that the assault be made with the required specific intent. The crime forbidden by Sec. 10 is 'unlawfully and carnally knowing and abusing' and the indictment for assault with intent to commit a rape must set forth that the assault was made with such intent. The indictment here in question does use the words 'with the intent' and in our opinion complies with the rules laid down by this Court in State v. Lynch, 88 Me. 195, 33 A. 978, quoted in Moody v. Lovell, supra, with respect to the use of the words of the statute setting forth the elements of a statutory crime which requires a specific intent. This rule was also approved in the recent case of Smith, Petitioner v. State, 145 Me. 313, 75 A.2d 538. We, therefore, hold that the words used in this indictment sufficiently charge the respondent with assaulting a female child under the age of fourteen years, to wit, the age of twelve years, with assault with intent to commit a rape and sufficiently charge a violation of R.S.1944, Chap. 117, Sec. 12.

The record discloses that on the night of April 22, 1950, at Guilford, Maine, one Althea A. Bearce and a girl friend went to the moving pictures. They left the theatre about 8:30 P.M. and walked together to the corner of Hudson Avenue and Oak Street where they stopped in front of the Guilford Trust Company for a few minutes and held a conversation. They then separated and the girl friend walked on Hudson Avenue in the direction of her home and said Althea A. Bearce walked on Oak Street toward her home. While walking she was accosted by the respondent whom she did not know and who took her by the arm and walked with her for a short distance. There was evidence that said Althea A. Bearce stated to the respondent that he had walked with her far enough. The respondent did not leave and continued to walk with said Althea A....