State v. Richardson

• Court: New Mexico Supreme Court
• Writing for the Court: BRICE, Justice.
• Citation: State v. Richardson, 48 N.M. 544, 154 P.2d 224, 1944 NMSC 59 (N.M. 1944)
• Decision Date: 21 November 1944
• Docket Number: No. 4846.,4846.
• Parties: STATEv.RICHARDSON.

48 N.M. 544

154 P.2d 224

STATE

v.RICHARDSON.

No. 4846.

Supreme Court of New Mexico.

Nov. 21, 1944.Rehearing Denied Jan. 9, 1945.

Appeal from District Court, Eddy County; J. C. Compton, Judge.

W. R. (Bob) Richardson was convicted of having raped a female under the age of 16 years, and he appeals.

Affirmed.

For purpose of determining legislative intent, court may look to the title of statute, and ordinarily it may be considered as part of the statute if necessary to its construction.

Caswell S. Neal, of Carlsbad, H. A. Kiker, of Santa Fe (on motion for rehearing), for appellant.

Edward P. Chase, Atty. Gen., and C. C. McCulloh, Asst. Atty. Gen., for appellee.

BRICE, Justice.

The appellant was convicted upon a charge of having raped a female “under the age of 16 years, to-wit, 14 years of age”, and has appealed from the judgment of the court, sentencing him to serve a term of years in the state penitentiary.

The information was in the following language: “That the defendant W. R. (Bob) Richardson, on the 6th day of August, 1943, in the County of Eddy, State of New Mexico, did unlawfully commit the crime of rape upon one (naming child), she being then a female minor under the age of 16 years, to-wit: 14 years of age, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of New Mexico.”

The statute upon which the charge was based is as follows: “A person perpetrating rape upon or an act of sexual intercourse with a female when the female is under the age of sixteen (16) years, or when over sixteen (16) years of age, through idiocy, imbecility, or any unsoundness of mind, either temporary or permanent, she is incapable of giving consent, or when her resistance is forcibly overcome, or when her resistance is prevented by stupor or by weakness produced by an intoxicating, narcotic or anaesthetic agent, administered by or with the privity of the defendant, is punishable by imprisonment for not less than one (1) nor more than ninety-nine (99) years.” Sec. 41-3901 N.M. Comp. 1941.

The trial court's instructions to the jury contain the following:

“This is a criminal case, in which the State of New Mexico, by an information filed in this Court on the 18th day of September, 1943, charges the defendant, W. R. Richardson, in the first count, with having sexual intercourse with (naming child), a female minor under the age of sixteen years. ***

“The material allegations contained in the information which must be proved to your satisfaction and beyond a reasonable doubt by the evidence introduced in this case, are:

“a. That the defendant, W. R. Richardson, did have sexual intercourse with (naming child);

“b. That at said time the said (naming child) was a female under the age of sixteen years. ***”

Regarding these instructions the appellant assigns error as follows: “The court erred in instructing the jury as if the offense charged in the first count of the information was the act of sexual intercourse with a female when the female was under the age of 16 years, instead of instructing the jury that the crime charged was ‘rape’ of a female under the age of 16, the cause having been tried upon the theory that the offense charged had been committed by ‘committing rape’ upon the female, (naming her); and in failing to instruct the jury upon the crime of rape.”

The instructions complained of were not objected to below; nor was the question now being considered raised there.

Rule 51(g) of Civil Procedure, 1941 Comp. § 19-101, is as follows: “For the preservation of any error in the charge, objection must be made or exception taken to any instruction given; or, in case of a failure to instruct on any point of law, a correct instruction must be tendered, before retirement of the jury. Reasonable opportunity shall be afforded counsel so to object, except or tender instructions.”

As we understand, appellant contends that the crime of “rape” and that of “sexual intercourse with a female when the female is under the age of sixteen years” are distinct and different crimes, and that the latter is not rape.

It is asserted that the appellant was not convicted of the crime charged in the information; that the questioned instructions had no reference to such crime; that the crime charged was common law rape which is defined to be the “carnal knowledge of a woman by force or against her will,” and that no such crime was proved, or referred to in the trial court's instructions to the jury.

For the reasons stated, appellant claims that his fundamental rights have been violated, and that the question may be raised for the first time in this court, citing State v. Taylor, 32 N.M. 163, 252 P. 984. If appellant was charged with common law rape only, then his conviction was fundamentally wrong, and the judgment of the district court should be reversed.

The original act (Ch. 24, L. 1887) was entitled “An Act to provide for the adequate punishment of the crimes against women and children-Rape-Abduction-Carnal abuse of children and seduction.” Section 1 of that act was amended by Ch. 51, N.M.L. 1915, changing the original age of consent to 16 years, otherwise the language is unchanged. The title of this act is: “An Act Amending Section 1090 of the Compiled Laws of 1887 of the State of New Mexico, Relating to the Crime of Rape.”

By Ch. 110 of N.M.L. 1923, the statute was enacted in its present form, increasing the penalty to not less than one nor more than 99 years' imprisonment, but otherwise the language is identical. The title of this act is: “An Act to Amend Section 1485 of New Mexico Statutes Annotated, Code of 1915; and Section 1 of Chapter 51 of the Session Laws of 1915, Relating to the Crime of Rape.”

A preliminary question is whether “sexual intercourse with a female when the female is under the age of sixteen years” with her consent, is rape.

The Territorial Court in Territory v. Edie, 6 N.M. 555, 30 P. 851, 852, held that the statute “merely defines the various means by which the same offense (rape) may be committed.” This court has, several times, referred to this crime as “statutory rape.” State v. Ellison, 19 N.M. 428, 144 P. 10; State v. Taylor, 32 N.M. 163, 252 P. 984; State v. Shults, 43 N.M. 71, 85 P.2d 591; State v. Walton, 43 N.M. 276, 92 P.2d 157.

The Massachusetts statute Pub.St. 1882, c. 202, § 27 is in the following language: “Whoever ravishes and carnally knows a female of the age of ten years or more by force and against her will, or unlawfully and carnally knows and abuses a female child under the age of ten years, shall be punished by imprisonment in the state prison for life, or for any term of years.” The question was, as here, whether with the child's consent an act of sexual intercourse with her is rape. The supreme judicial court of Massachusetts, in Commonwealth v. Roosnell, 143 Mass. 32, 8 N.E. 747, 750, said: “In England, the definitions of ‘rape’ have sometimes included the statutory offense of carnal knowledge of a young child. Thus: ‘Rape is felony, by the common law, declared by parliament, for the unlawful and carnal knowledge and abuse of any woman above the age of ten years, against her will, or of a woman child under the age of ten years, with her will or against her will.’ 3 Coke, Inst. 60. ‘Rape is the carnal knowledge of any woman above the age of ten years, against her will, and of a woman child under the age of ten years, with or against her will.’ 1 Hale, P.C. 628. See, also, page 631. In East, P.C. 436, it is said: ‘This last offense (viz., unlawful abuse of a child) is not, properly speaking, a rape, which implies a carnal knowledge against the will of the party, but a felony created by this statute, (18 Eliz. c. 7, § 4) under which the consent or non-consent of the child, under the age of ten years, is immaterial.’ Other writers have directly, or by implication, included the statutory offense within the term ‘rape.’ See 4 Bl. Comm. 212; 1 Gabb.Crim. Law 832; Roscoe, Crim.Ev. (7th Ed.) 289, 851. But, however it may have been elsewhere, in Massachusetts the offense of unlawfully and carnally knowing and abusing a female child under the age of 10 years is, and for more than 200 years has been, known and designated as ‘rape.”’

The statute of Kentucky on the same question is as follows: “Whoever shall unlawfully, carnally know a female under the age of sixteen years, or an idiot, shall be confined in the state penitentiary not less than ten nor more than twenty years.” Ky. St. 1909, § 1155.

The Court of Appeals of Kentucky in Nider v. Commonwealth, 140 Ky. 684, 131 S.W. 1024, 1025, Ann.Cas.1913E, 1246, held that the crime denounced by this statute “is a lower degree of the offense of rape, and is included in it.”

The statute of Florida is as follows: “Whoever ravishes and carnally knows a female of the age of ten years or more, or by force and against her will, or unlawfully or carnally knows and abuses a female child under the age of ten years, shall be punished by death or by imprisonment in the state prison for life.” F.S.A. § 794.01.

It was held that in either of the cases mentioned in the statute “the crime denounced is rape.”

There are cases that hold the crime of carnally knowing a child under the age of consent is not rape; but for many years, and perhaps since the enactment of the statute, the crime has been generally known and designated in this state as “rape” and the titles to the amendatory acts indicate that the Legislature construed every crime denounced by the statute as rape.

[1] For the purpose of determining the legislative intent we may look to the title, and ordinarily it may be considered as a part of the act if necessary to its construction. State ex rel. State Corporation Commission v. Old Abe Co., 43 N.M. 367, 94 P. 2d 105, 124 A.L.R. 1085.

If there are crimes denounced by this statute that have no relation to that of rape, then to that extent the statute is unconstitutional in that it...