38 Misc. 2d 459 | N.Y. Sup. Ct. | 1963
A jury has found the defendant guilty of assault, second degree, with intent to rape. He is now before me for sentence and in connection therewith the District Attorney has filed a prior offense information which alleges that the defendant is now a second felony offender by reason of the fact that he was previously convicted, after trial, in the Commonwealth of Pennsylvania, of three crimes, viz., (1) aggravated assault and battery, (2) assault with intent to ravish and (3) rape (Indictment or Bill No. 59).
The defendant denies his status as a second felony offender (Penal Law, § 1941). The questions of law raised by that denial are now before me for determination upon an agreed statement of facts.
Defendant’s identity as the Pennsylvania convict is conceded
The essence of the argument is that under Pennsylvania law, adultery or fornication is consensual sexual intercourse, so that the yielding of consent was necessarily adjudicated by the court when it accepted defendant’s guilty plea on the fornication charge and entered a judgment thereon. However, neither actual nor implicit “ consent ” appears within the framework of the operative facts of record (i.e., the allegations of the Pennsylvania indictments — upon which the defendant was found guilty) and the defendant is limited to those facts (People v. Perkins, 11 N Y 2d 195, 198).
Nowhere in the record does it appear that defendant resisted trial on the crimes alleged in Bill Number 59 on the ground of his prior conviction of the fornication (also a constitutent of the rape) (Commonwealth v. Arner, 149 Pa. 35) and his failure to raise the question, seasonably, operated as a waiver of his right to immunity from any second jeopardy then or now thought to have been involved (Commonwealth v. Gibbs, 167 Pa. Super. 79; Morlan v. United States, 230 F. 2d 30, 32 [C. A., 10th]).
If the trial court in Pennsylvania committed error in finding the defendant guilty as charged on Bill Number 59, which is the conviction used by the District Attorney here as the prior felony, because his prior plea of guilty to the fornication indictment (Bill No. 60) was a bar to any further prosecution for the same incident, his remedy was to take a direct appeal from the judgment of conviction entered against him thereon. He may not in this State seek to destroy the legal effect of the conviction under that indictment by referring to the contents of another indictment. So long as the judgment of conviction under Bill Number 59 stands of record in the State of Pennsylvania and was not rendered by a court which “ lacked jurisdiction of his person or of the offense charged against him, he may not in this State question its judgment ” (People v. McCullough, 300 N. Y. 107, 110).
I am aware of the fact that in United States ex rel. La Near v. La Vallee (306 F. 2d 417) the court said that since New York provides no method for questioning the validity of an out-of-State conviction that is used as a basis for a sentence under the New York multiple offender statute, the convict is entitled to a hearing in the Federal court on the validity of the foreign conviction and a determination of whether it is a permissible basis for New York’s confining him longer than it otherwise would.
Thus viewed, the La Near case is not in conflict with the McCullough case. In the absence of any constitutional infirmity in the Pennsylvania judgment of conviction, upon which the People here rely, the rationale of the McCullough case applies. The defendant must therefore be sentenced as a second felony offender.
Assuming, however, that the plea of guilty to the fornication indictment (Bill No. 60), upon which a judgment of conviction was duly entered, may be considered together with the judgment of conviction entered on Bill Number 59 (the assault and rape indictment), in determining the defendant’s status as a second felony offender, the same result would follow. The reason for that conclusion necessitates a recital of the pertinent facts.
By reference to certified copies of the Pennsylvania records
Adultery is defined by the Pennsylvania statute (Penal Code of 1939, 18 P. S., § 4505) as “ carnal connection with another person of the opposite sex, not his lawful spouse ”, upon the part of a married person. A co-operative, unmarried participant cannot be guilty of the crime (Karchner v. Mumie, 398 Pa. 13), but is open to prosecution for fornication and, in the case of the male offender, for bastardy, upon conviction whereof he is subject to a sentence that he pay the expenses incurred at the birth of a child begotten by the act and that he give security for its maintenance (18 P. S., § 4506). The statute proscribes fornication without defining it but the offense, in common acceptance, involves illicit carnal knowledge of a man with a woman (Commonwealth v. Stewart, 110 Pa. Super. 279), without elements of aggravation (Dinkey v. Commonwealth, 17 Pa. 126) such as force constituting common-law rape (Commonwealth v. Moskorison, 170 Pa. Super. 332). Fornication is held to be necessarily involved in rape and the doctrines of merger and bar are applied so as to prevent double punishment for the rape and the crimes (successive steps constituting “ ingredient ” offenses) involved in its commission. (Commonwealth v. McCusker, 363 Pa. 450.) (Cf. People v. Florio, 301 N. Y. 46, 54; People ex rel. Maurer v. Jackson, 2 N Y 2d 259, 265-269.)
Thus, although the woman is too drunk to consent, the man may be guilty of adultery. ‘ ‘ It is an act committed by bim * * * although she is not the criminal or conscious participant. And it is no less adultery that it is also rape” (Commonwealth v. Bakeman, 131 Mass. 577, 579).
The requirement that the intercourse be voluntary is “to be applied to the party who commits the offense, and not the one with whom or against whom it is done ” so that if the carnal connection is accomplished forcibly, against the woman’s will still, “as to defendant, it * * * constitutes the crime of adultery, and the defendant may be convicted therefor ” (State v. Chambers, 87 Iowa 1, 7), quoting and following State v. Sanders (30 Iowa 582).
“ Adultery, as thus defined, does not require that the act shall be voluntary as to each of the parties ” (Signs v. State, 35 Okla. Cr. 340, 344). “ Where both the circumstances of force and consanguinity are present * * * it is not less incest because the element of rape is added, and it is not less rape because perpetrated upon a relative ” (People v. Stratton, 141 Cal. 604, 608-609). “ In our judgment the better reasoning supports the conclusion that the consent of the female is not necessary to constitute the crime of incest by the male. * * * It is his intent and his act that the law punishes him for ” (David v. People, 204 Ill. 479, 486-487). “ [T]he male may be convicted of incest, even though he accomplished the act without the consent of the female and against her will ” (Gaston v. State, 95 Ark. 233, 235).
In summary, the majority of the courts take the position, in effect, that although “ [a] person who has committed no crime in the eyes of the law cannot, of course, be characterized as an accomplice ” (People v. Gibson, 301 N. Y. 244, 246) the defendant’s guilt of adultery or fornication is determined by Ms conduct and the consequences thereof are not avoided by the innocence of his victim (Smith v. State, 108 Ala. 1; McCaskill v. State, 55 Fla. 117; People v. Barnes, 2 Idaho 161; People v. Arendarczyk, 367 Ill. 534; Norton v. State, 106 Ind. 163; State v. Hurd, 101 Iowa 391; Burdue v. Commonwealth, 144 Ky, 428; State v. Hamey, 168 Mo. 167, overruling State v. Ellis, 74 Mo. 385 [which cited People v. Harriden, 1 Park. Cr. Rep. 344]; State v. Hughes, 108 N. J. 64, revd, on other grounds 109 N. J. L, 189; State v. Hittson, 57 N. M. 100; People v. Wilson, 206 Misc. 880, 882-883; Strider v. Lewey, 176 N. C. 448; State v. Labus, 102 Ohio St. 26; Jordon v. State, 62 Tex. Cr. 388; State v. Winslow, 30 Utah 403; State v. Hornaday, 67 Wash. 660, followed in State v. Coffey, 8 Wn. [2d] 504; Porath v. State, 90 Wis. 527).
The Pennsylvania courts apply the doctrine of constructive force when mental illness renders the woman incapable of giving rational consent and, perhaps, when she is unconscious through intoxication, drugs or sleep (Commonwealth v. Stephens, 143 Pa. Super. 394; Matchin v. Matchin, 6 Pa. St. 332) and (implieity) do not consider the sexual act to have been consensual when the woman is surprised and victimized by a physician who has abused the confidence placed in him (Commonwealth v. Morgan, 358 Pa. 607). Common-law rape, of course, is the antithesis of consensual sexual intercourse (Commonwealth v. Exler, 243 Pa. 155).
Under those circumstances it does not appear that defendant’s conviction of fornication by way of his guilty plea is inconsistent with his conviction after trial of the rape and the assault with intent to commit it. There is, consequently, no difficulty in perceiving that the latter crimes would have been felonies if committed in New York and it follows that the District Attorney should be sustained in his effort to protect the women of the community by requesting the penalty that may serve to deter sexual aggression (People v. Florio, 301 N. Y. 46, 53-54, supra) and thus avoid any temptation to the injured female or the male members of her family to take private vengeance (see Commonwealth v. Morgan, 358 Pa. 607, supra).
The information charging the defendant with being a second felony offender is therefore sustained and the application of the defendant to dismiss it is denied with an exception.
. Reached by stipulation between counsel in open court and reduced to writing, and which for the purpose of identification has been marked Court Exhibit I.
. Stipulation (unnum.) p. 5, last paragraph.
. By consent marked Court Exhibit 2 in evidence.
. The Pennsylvania statute (18 P. S., § 4708), like that of New York (Penal Law, § 244, subd. 1), penalizes simple assault and battery without defining it. The basic concept is taken from the common law (Commonwealth v. Bird, 152 Pa. Super. 648; Commonwealth v. Moon, 151 Pa. Super. 555; Commonwealth v. Gregory, 132 Pa. Super. 507; People v. Young, 12 A D 2d 262, 263-264, revd. on other grounds 11 N Y 2d 274; Hays v. People, 1 Hill 351, 352; People v. Lee, 1 Wheel. Cr. Cas. 364, 365, 366-369). “Indecent assault”, so-called, involves any lecherous handling without the consent of the female but without intent to have carnal knowledge of her, by force (Commonwealth v. Shrodes, 354 Pa. 70).
. Guilt under the Pennsylvania statute (18 P. S., § 4709) may be made out by proof of culpable negligence in the operation of a motor vehicle, the intent to commit an assault and battery being inferable from the circumstances (Commonwealth V. Comber, 374 Pa. 570, 582, n.). That is a New York misdemeanor (Penal Law, § 244, subd. 2; People v. Stovali, 172 Misc. 469, 470, 472; contra, People ex rel. Evans v. Denno, 13 Misc 2d 177, 179-180). Specific intent to inflict the grievous bodily harm is essential to guilt of the New York felony (People v. Katz, 290 N. Y. 361, 365-366).
. “ Whoever commits an assault and battery upon a female, with intent, forcibly and against her will, to have unlawful carnal knowledge of her, is guilty of a felony ” (18 P. S., § 4722).
. “ Whoever has unlawful carnal knowledge of a woman, forcibly and against her will, or whoever, being of the age of sixteen (16) years and upwards, unlawfully and carnally knows and abuses any woman child under the age of sixteen (16) * * * with or without her consent, is guilty of rape » * *, Upon the trial of any defendant charged with the unlawful carnal knowledge and abuse of a woman child under the age of sixteen (16) years, if the jury shall find that such woman child was not of good repute, and that the carnal knowledge was with her consent, the defendant shall he acquitted of rape, and be convicted of fornication ” (18 P. S., § 4721).
. Defendant may be sentenced for the most serious crime but not for ingredient-offenses committed in “successive steps” toward the major crime; contra, as to “distinct offenses” not necessarily involved in the latter. Thus, since statutory rape and bastardy are distinct crimes separate sentences may be imposed therefor but not on the fornication conviction on which the bastardy adjudication rests (Commonwealth ex rel. Roberts v. Keenan, 170 Pa. Super. 282). Acquittal of fornication will bar judgment on common-law rape, but not for assault, etc., with intent to ravish (Commonwealth v. Moss, 173 Pa. Super. 367); acquittal of adultery does not bar later prosecution for assault with intent to rape (Commonwealth v. Moon, 151 Pa. Super. 555).
. “ For a rape committed by a husband, a wife may have a divorce * * * rape is adultery on the part of the man, although not so on the part of the woman who is carnally known forcibly and against her will. It is so treated in the criminal law” (Johnson v. Johnson, 78 N. J. Eq. 507, 509).