97 Mich. 484 | Mich. | 1893
Respondent was convicted of the crime of rape upon one Annie Punderson, a girl of 10 years of age, in the superior court of Grand Rapids.
Several errors are assigned.
The statute
“If any person .shall ravish and carnally know any female of the age of fourteen years or more, by force and against her will, or shall unlawfully and carnally know and abuse any female child under the age of. fourteen years, he shall be punished by imprisonment in the State prison for life or for any term of years; and such carnal knowledge shall be deemed complete upon proof of penetration only.'”
In People v. Glover, 71 Mich. 303, the case was brought under this statute, and error was alleged upon the refusal of the court to allow the respondent to show that the reputation of the girl for chastity was bad. It was held that, the statute having fixed the age of consent at* 14 years, it would be no answer to the charge that she had a bad reputation for chastity. The ruling of the court in the present case excluded the inquiry as to whether she had had sexual intercourse with other men prior to that' time, and was correct for the reasons given in People v. Glover, supra. The offense is in unlawfully and carnally knowing a female child under the age of 14 years, and it is no less an offense, within the terms of the statute, if the child has had intercourse with other men prior to that
But though the court did exclude, at the time it was first offered, evidence of this character, it was afterwards admitted, and respondent’s counsel drew from the girl the fact that at other times prior to the alleged offense she had had intercourse with several other men. The court admitted this testimony on the claim of counsel for respondent that it was competent as bearing upon the girl’s credibility. It was not competent, in this case, even for that purpose. If the girl had been of the age of consent, it might be competent to admit evidence of her general reputation for chastity, as bearing upon the probability of her story, but specific acts of unchastity could not be inquired into.. People v. McLean, 71 Mich. 309. But here the law conclusively presumes that the girl could not give her consent, and every act of intercourse with her would be a crime committed against her, and such acts could not, therefore, affect her credibility. Her reputation for truth and veracity could be inquired into, the same as of an adult, but she could not be impeached by her acts of intercourse.
“Upon an indictment for any offense consisting of different degrees, as prescribed in this title, the jury may find the accused not guilty of the offense in the degree charged in the indictment, and may find such accused person guilty of any degree of such offense inferior to that charged in the indictment, or of an attempt to commit such offense.”
In People v. McDonald, 9 Mich. 150, 153, it was said:
“It is a general rule of criminal law that a jury may acquit of the principal charge, and find the prisoner guilty of an offense of lesser grade, if contained within it.”
See, also, Hanna, v. People, 19 Mich. 316, to the same effect, and in which the provision of the statute above quoted was cited.
It was settled in Campbell v. People, 34 Mich. 351, that under an information charging rape it is competent to find the respondent guilty of an assault with intent to ravish. 'The same doctrine was followed in Hall v. People, 47 Id. 636. In the latter case it was said:
“We are also of the opinion that the court erred in not instructing the jury that they might convict the accused of a felonious assault under the offense charged.”
It was held in People v. Courier, 79 Mich. 366, that,
In 'this case it was a question for the jury, under the evidence in the case, to determine whether the respondent was guilty of rape, of assault with intent- to commit that crime, or of simple assault; and -the court should have directed them! what constitutes the lesser offenses, and that they might convict on either of these lesser offenses. Hall v. People, 47 Mich. 636.
For these errors the judgment must be set aside, and a new trial awarded.
3 How. Stat. § 9094.