Commonwealth v. Murphy
42 N.E. 504
Mass.
1895
Check Treatment
Knowlton, J.

These cases may be considered together, as substantially the same questions are raised in both of them.

Under Pub. Sts. c. 202, §§ 27, 28, the question whether an indictment for an assault with an intent to commit rape upon a female child under the age of ten years can be maintained if the child consents to what is done, was very fully considered in Commonwealth v. Roosnell, 143 Mass. 32, and decided in the affirmative. This case must be deemed to have settled the law in this Commonwealth in accordance with the weight of judicial opinion, although there is some conflict of authority in other jurisdictions.

The several acts in amendment of § 27 above cited, which *69raise the age of consent by girls to carnal connection, 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. St. 1886, c. 305. St. 1888, c. 391. St. 1893, c. 466. 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.

The defendants contend that the statute last cited is in conflict with Article VIII. of the Amendments to the Constitution of the United States, and of Article XXVI. of our Declaration of Rights, because it provides for the infliction of a cruel and unusual punishment.

The first of these articles has no application to crimes against the laws of a State. Commonwealth v. Hitchings, 5 Gray, 482. Without implying that Article XXVI. of our Declaration of Rights is applicable to the statute before us, it is clear that the punishment prescribed is not cruel or unusual in kind.

There is some ground for the contention that the statute is a departure from the principles which lie at the foundation of our ancient law in regard to rape, and which justify the treatment of it as one of the most heinous crimes that can be committed. The legislation is different in character from the Sts. of 1886, c. 329, and of 1888, c. 311, which were enacted for the punisliment and prevention of seduction. But whatever we may think of the policy of a statute that treats a girl fifteen years and eleven months old, however mature she may be in body and mind, as if she were incapable of committing the crime of fornication, and subjects a boy of the same age with whom she joins in sexual intercourse to a possibility of the same punishment as if he were guilty of murder in the second degree, the Legislature is ordinarily the judge of the expediency of creating new crimes, and of prescribing penalties, whether light or severe, for prohibited acts. We cannot say that the punishment prescribed for this offence, when the girl is nearly sixteen years of age and voluntarily participates in it, is beyond the constitutional power of the Legislature to inflict.

*70The presiding justice was asked to instruct the jury that, unless the defendant knew or had good reason to believe that the girl was under sixteen years of age, he could not be convicted. How far a mistake of fact in regard to the nature of his act may be availed of by a defendant in a criminal ease is sometimes a difficult question to answer. In general, it may be said that there must be malus animus, or a criminal intent. But there is a large class of eases in which, on grounds of public policy, certain acts are made punishable without proof that the defendant understands the facts that give character to his act.

In such cases it is deemed best to require everybody at his peril to ascertain whether his act comes within the legislative prohibition. Among these cases are prosecutions for the unlawfui sale of intoxicating liquor, for selling adulterated milk, for unlawfully selling naphtha, for admitting a minor to a billiard-room, and the like. Commonwealth v. Farren, 9 Allen, 489. Commonwealth v. Raymond, 97 Mass. 567. Commonwealth v. Emmons, 98 Mass. 6. Commonwealth v. Wentworth, 118 Mass. 441. Commonwealth v. Savery, 145 Mass. 212. Commonwealth v. Connelly, 163 Mass. 539. Considering the nature of the offence, the purpose to be accomplished, the practical methods available for the enforcement of the law, and such other matters as throw light upon the meaning of the language, the question in interpreting a criminal statute is whether the intention of the Legislature was to make knowledge of the facts an essential element of the offence, or to put upon every one the burden of finding out whether his contemplated act is prohibited, and of refraining from it if it is. The application of this rule to crimes like bigamy and adultery has led to some conflict of authority. Commonwealth v. Hayden, 163 Mass. 453, 457. Regina v. Tolson, 23 Q. B. D. 168. See Commonwealth v. Presby, 14 Gray, 65.

The defendants in the present cases knew that they were violating the law. Their intended crime was fornication at the least. It is a familiar rule that, if one intentionally commits a crime, he is responsible criminally for the consequences of his act if the offence proves to be different from that which he intended. See Regina v. Prince, L. R. 2 C. C. 154, 175.

Bxceptions overruled.