205 Mich. 95 | Mich. | 1919
(after stating the facts). In; the affidavits in support of the motions mentioned it was made to appear that the complaining witness had given birth to no child nor suffered from abortion or miscarriage. From this premise it is argued that the judge in imposing sentence upon respondent proceeded upon an erroneous assumption of fact and that this error is reflected in the severity of the sentence. There seems to be no doubt that at the trial in the circuit court it was believed that the complaining witness was then pregnant and there appears to be no question that such belief was erroneous. It is not apparent, however, how that error can be made available for relief in the present proceeding.
Much stress is placed by counsel upon the legislation affecting this question. The act under which respondent was prosecuted was originally passed in 1887 and is practically identical in phraseology with 3 Comp. Laws 1915, § 15211, with the single exception of the age of consent, which was placed at fourteen in the ’87 act and at sixteen in the amendment of 1895. At the same session at which Act No. 112, Pub. Acts 1887, was passed the legislature passed another act-known as Act No. 143, section 1 of which provides:
“The people, of the State of Michigan enact: That any male person of the age of sixteen years or more who shall carnally know any girl, theretofore chaste, of the age of fourteen years and not more than sixteen years of age, with the consent of such girl, shall,*100 upon conviction thereof, be punished by imprisonment in the State Prison, or the State House of Correction and Reformatory, for a term of not more than five years or in the county jail not more than one year, or by fine of not more than one thousand dollars^but no prosecution shall be commenced under this section after one year from the time of committing the offense.”
By the first of these two acts passed at the same session it was the evident intention of the legislature to make absolutely unlawful sexual intercourse with girls, chaste or unchaste, under the age of fourteen years, with or without consent and to provide severe punishment for the same. By the second act sexual intercourse with girls between the ages of fourteen and sixteen theretofore chaste, with their consent, was prohibited and a lesser punishment provided. The law stood so between the years 1887 and 1895 when by the amendment contained in Act No. 70 of the Public Acts of that year the age of consent was raised to sixteen years, since which time the unchaste girl as well as the chaste girl under sixteen has been unable to legally consent to an act of cohabitation. It was held by the learned circuit judge that the passage of the amendment of 1895 raising the age of consent to sixteen years as to all girls chaste as well as unchaste operated as a repeal of Act No. 143, Pub. Acts 1887, and in this view we agree with him.
If it were important to answer the contention of counsel that the complaining witness consented to the commission of the act it seems to us that a reading of the quotation from her evidence might well negative the assertion that she was a willing participator in the commission of the act. Respondent was a man ten years her senior and was quite able to have imposed his will upon her, but whether the commerce was induced through the exercise of force and against her will or through persuasion and with her consent can make no difference in the result, for under the
“The crime is complete, under the statute, whether the intercourse is had with force or by consent. In this case the proof is conclusive that the girl consented, unless it should have been found that she did not possess sufficient mind or intelligence to consent.”
Some argument is made with reference to the word “abuse” in the sentence, “unlawfully and carnally know and abuse,” it being the contention that in this case there is- no proof of rape or abuse. The quotation from People v. Smith, supra, is a sufficient answer to this contention. If it is true as claimed by counsel for respondent that the case is one of peculiar hardship and that the sentence is- excessive, that argument may be presented to the pardoning power of the State which it must be presumed grants relief in all proper cases. The respondent is plainly guilty under the law of the offense charged in the information.
We find no error in the proceedings and the judgment must be affirmed.