Commonwealth vs. Jacob Hackett

Massachusetts Supreme Judicial Court1898-01-08

170 Mass. 194

Summary · law.co

Holding. The court overruled the defendant's exceptions and affirmed the judgment for the Commonwealth, holding that carnal knowledge of a female child under the age of consent constitutes rape under the 1893 statute, that charging assault in conjunction with this offense does not render the indictment duplicitous or void, and that a judgment may be entered on counts where the jury returned guilty verdicts even when no verdict was returned on other counts.

The defendant challenged an indictment charging him with both assault and unlawful carnal knowledge of a female child under sixteen years of age, arguing that under a recent 1893 statute, such conduct should no longer be classified as rape and that charging both offenses created duplicitous and vague counts. The court rejected this argument, holding that the 1893 statute did not change the fundamental nature of the offense—carnal knowledge of a child under the age of consent has long been treated as rape under Massachusetts law, regardless of the child's capacity to consent. The legislature's decision to restructure the statute and adjust the age of consent from lower ages to sixteen years was merely a modification in statutory form and punishment discretion, not a substantive redefinition of the crime itself.

The court also addressed a secondary procedural issue: the jury failed to return a verdict on two counts of the indictment, but this did not invalidate the judgment on the counts where the defendant was found guilty. The acceptance of the partial verdict and the resulting judgment effectively constituted either an acquittal or discontinuance of the remaining counts, making the motion in arrest of judgment properly deniable.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether unlawful carnal knowledge of a child under sixteen years constitutes rape under the 1893 statute
Whether an indictment charging both assault and unlawful carnal knowledge of a child is duplicitous and therefore void
Whether a judgment may be entered when a jury fails to return verdicts on all counts charged

Procedural posture

The defendant moved to quash the indictment and, after conviction on some counts with the jury failing to return verdicts on others, moved in arrest of judgment.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Lathrop, J.

The contention of the defendant in support of the motion to quash is based upon the argument that, since the St. of 1893, c. 466, the offence of unlawfully and carnally knowing a female child under the age of consent is no longer rape ; that an assault should not be charged for an offence under § 2; and that the effect of charging an assault and also the specific offence described in § 2 is to render the first five counts bad for duplicity, they being repugnant to the sense, and vague, uncertain, and indefinite.

The St. of 1893, c. 466, § 1, provides: “ Whoever ravishes and carnally knows a female by force and against her will shall be punished by imprisonment in the state prison for life, or for any term of years.” Section 2 provides: “ Whoever unlawfully and carnally knows and abuses a female child under the age of sixteen years shall be punished by imprisonment in the state prison for life, or for any term of years, or for any term in any other penal institution in the Commonwealth.” Section 3 repeals the St. of 1888, c. 391.

Section 27 of the Pub. Sts. c. 202, which follows earlier statutes, provides : “ 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.” This section was repealed by the St. of 1886, c. 305, § 2, but § 1 is the same as § 27 of the Public Statutes, except that the word “ thirteen ” is substituted for the word “ ten ” in the earlier statute. The word “ fourteen ” was substituted for the word “ thirteen ” by the St. of 1888, c. 391; and now by the St. of 1893, c. 466, § 2, the age of consent is raised to sixteen years.

There can be no doubt that prior to the St. of 1893 an indictment in the present form was good. The offence was rape, and it was proper to allege an assault, though it was not necessary to aver or prove that the act alleged was done against the will of the child assaulted or without her consent. On account of her tender years she was incapable of giving a valid consent; and the law conclusively presumed that she did not consent. Commonwealth v. Roosnell, 143 Mass. 32, and cases cited.

We do not consider the fact that the St. of 1893 has used two sections instead of one, or the fact that it has given more discretion to the court as to the punishment in § 2 than in § 1, in any way changes the law, which from early times has existed here, that carnal knowledge and abuse of a female child under a certain age is rape. In Commonwealth v. Murphy and Commonwealth v. Enos, 165 Mass. 66, it was said by Mr. Justice Knowlton, in delivering the opinion of the court, that the acts in amendment of § 27 of the Pub. Sts. c. 202, including the St. of 1893, c. 466, which raise the age of consent, “ do not assume to change the nature of the offence to which they relate. One who unlawfully carnally knows and abuses a female child under the age of sixteen years is guilty of the same crime under St. 1893, c. 466, as one who committed the offence upon a child under the age of ten years, when Pub. Sts. c. 202, § 27, were in force. . . . There is no doubt of the intention of the Legislature to treat the crime of having carnal connection with a girl under the age of sixteen years as rape, even if she gives her full consent so far as she is capable of consenting.” It may be remarked that the indictment in Commonwealth v. Enos was not for an assault and an attempt to carnally know and abuse, as stated in the report, 165 Mass. 68, but was similar to the first five counts in the indictment in the case at bar. The motion to quash was rightly overruled.

The fact that the jury failed to return a verdict upon the ninth and tenth counts of the indictment did not prevent a judgment being entered against the defendant upon the counts upon which he was found guilty. The effect of the acceptance of the verdict and the judgment consequent thereon operated either as an acquittal of the defendant on the ninth and tenth counts, or as a discontinuance of them. Edgerton v. Commonwealth, 5 Allen, 514. Commonwealth v. Foster, 122 Mass. 317, 322. The motion in arrest of judgment was, therefore, properly denied.

The exceptions must therefore be overruled; and judgment entered for the Commonwealth upon the appeal.

So ordered.