State v. Flaherty
Decision Date | 06 May 1929 |
Citation | 146 A. 7 |
Parties | STATE v. FLAHERTY. |
Court | Maine Supreme Court |
Exceptions from Supreme Judicial Court, Cumberland County, at Law.
John J. Flaherty was convicted of rape, and he brings exceptions. Exceptions overruled.
Argued before WILSON, C. J., DEASY, STURGIS, BARNES, and BASSETT, JJ., and PHILBROOK, A. R. J.
Ralph M. Ingalls, Co. Atty., and Walter M. Tapley, Jr., Asst. Co. Atty., both of Portland, for the State.
Joseph E. F. Connolly, of Portland, for respondent.
PHILBROOK, A. R. J. The respondent, charged with committing the crime of rape, tried by jury, and found guilty, brings his case before the law court by a bill of exceptions.
There are eight exceptions in the bill, but in argument these are reduced to four, viz.:
A. Denial of respondent's motion for a directed verdict at the close of the opening to the jury by the attorney for the state.
B. Denial of respondent's motion for a directed verdict at the close of all the evidence.
C. Exceptions by the respondent to the charge of the presiding justice.
D. Exceptions by the respondent to the exclusion and admission of evidence concerning the alleged intoxication of the complaining witness at and before the time of the occurrence laid in the indictment.
The first three exceptions involve essentially the same legal questions.
The indictment alleges that the respondent, on a certain day and at a certain place, upon a certain female person, more than 14 years of age, feloniously did make an assault, and did then and there feloniously, unlawfully, and willfully, by force and against her will, rape, ravish, and carnally know and abuse the said person, against the peace of the state and contrary to the form of the statute in such case made and provided.
Our statute, R. S. c. 120, § 16, provides that "whoever ravishes, and carnally knows, any female of fourteen or more years of age, by force and against her will," shall suffer a punishment of such severity as to make the act a felony. Strictly speaking, this statute does not define rape, but provides a punishment for the crime. At common law the earlier jurists and text-book writers denned rape as the having of unlawful carnal knowledge of a woman, forcibly and against her will. 4 Blackstone, 210; 1 Russell on Crimes (3d Eng. Ed.) 675; 1 East, P. C. 434; 1 Hawk. P.C. (Curw. Ed.) 122; 1 Hale, P. C. 628. Later authorities define it as the act of a man in having unlawful carnal knowledge of a woman, forcibly and without her consent. This definition receives favorable comment in a note following Smith v. State, 80 Am. Dec. at page 361, since the crime may be committed when, strictly speaking, the woman exhibits no will at all in the matter, as where she is drugged, or non compos mentis.
In Com. v. Burke, 105 Mass. 376, 7 Am. Rep. 531, Mr. Justice Gray said that it is manifest upon the face of the Statutes of Westminster, and is recognized in the oldest commentaries and cases, that the words "without her consent" and "against her will" were used synonymously. That the words "against her will" mean exactly the same thing as "without her consent," and that the distinction between those phrases, as applied to the crime of rape, is unfounded, has been held in Gore v. State, 119 Ga. 418, 46 S. E. 671, 100 Am. St. Rep. 182; Com. v. Burke, supra; Whittaker v. State, 50 Wis. 518, 7 N. W. 431, 36 Am. Rep. 856.
In any event, there are three elements which must be present to constitute rape, viz. carnal knowledge, force, and the commission of the act without the consent or against the will of the ravished woman. People v. Griffin, 117 Cal. 583, 49 P. 711, 59 Am. St. Rep. 216; Rice v. State, 35 Fla. 236, 17 So. 286, 48 Am. St. Rep. 245.
In the case at bar the state offered no testimony to prove that the respondent had actual carnal intercourse with the complaining witness, and frankly admitted in the opening address to the jury, made part of the record, that such was not the fact, but did offer testimony to prove that the respondent, being a person possessed of great strength in his arms, forcibly and against the will of the woman, held her while two other men had carnal intercourse with her without her consent and against her will.
After the attorney for the state, in his opening address, had rehearsed the facts upon which he relied, and again after all the testimony relied upon by the state had been given, counsel for the respondent presented motions for a directed verdict of not guilty, upon the ground that the respondent had not been shown to have had any carnal intercourse with the complaining witness, and therefore was not guilty as charged in the indictment. Both motions were denied, and exceptions taken and allowed.
In his charge to the jury, the presiding justice remarked: To this instruction the respondent seasonably took exceptions, and the same were allowed.
The denial of the two motions above referred to, and that portion of the charge just quoted, relate to the same legal issues herein raised by the first three exceptions.
It is now a well-settled rule of law that rape is a felony, and that all persons who are present, aiding, abetting, and assisting a man to commit the offense, whether men or women, are principals, and may be indicted as...
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