51 Wis. 460 | Wis. | 1881
This is an information in the usual form, charging the defendant with having committed the crime of rape upon the person of “ Mary Conant, a female of the age of ten years or more. ” The learned circuit judge charged the jury as follows: “If you do not find the defendant guilty of the crime of rape, and find that he had sexual connection with Mary Conant, the complaining witness, at the time and place named in the information, you may and should find him guilty of fornication.” The jury found the defendant not guilty of the crime of rape, but guilty of the offense of fornication. The learned judge reported the case to this court, with the following questions of law, viz.: “First, can conviction for the offense of fornication be sustained under the information in this case; or, second, was such charge error, so that a new trial should be granted? ” •
Eornication is not a common-law offense, and therefore both the information and proof under it must conform to the statute which prescribes the penalty. 2 Whart. Cr. L., 2667; Com. v. Isaacs, 5 Rand., 634; Smith v. Minor, 1 Coxe, 16; State v. Cox, 2 Taylor (N. C.) Term R., 165. The statute of this state (section 4580, R. S.) is as follows: “Any man who commits fornication with a single woman, each of them shall be punished,” etc. The commonly accepted legal meaning of fornication is “ illicit sexual connection between a man and woman, as husband and wife, not being such.” Our statute limits the offense to a man and single woman, thus creating a clear distinction between fornication and adultery, which latter crime can be committed only by a married man or with a married woman. The crime of rape may be committed upon an unmarried or a married woman not the wife of the defend
Where a conviction can be had for a lesser offense under an indictment for a greater, such lesser offense must be included in the greater by necessary words of description, so that, if the words defining the greater offense are stricken out of the information, there would remain a sufficient description of the lesser offense. One offense is a part of and included in another only “ when one offense slides into and is a part of the proof of another.” 1 Whart. Cr. L., 564. Or, as Mr. Justice Lyon says in Kilkelly v. The State, 43 Wis., 604: “ The rule is,
Another very good reason why the defendant could not be convicted of fornication under such an information, is found in that part of the section defining the offense, which requires that “ each of them shall be punished,” or both the man and the woman. It would seem that if the man can be convicted of fornication under an information charging him with rape upon the woman, the woman could in the same case and under the same information also, for they are both equally guilty. Such a result would certainly very clearly illustrate the inconsistency of such a rule. But, without further discussion, the rule as above recognized by this court is clearly applicable to this class of offenses, and from their very nature they are not included in each other. 1 Bish. Crim. Pro., 419, 420; The People v. Harriden, 1 Park. Cr. Rep., 344; The State v. Lewis, 48 Iowa, 578; Com. v. Murphy, 2 Allen, 163. The answer, therefore, to the first question reported is in the negative.
The second question, “ Was such charge error, so that a new trial should be granted?” is a compound one, and may be answered, (1) that such charge was error, and (2) a new trial should not be granted.' The firsts answer to the second ques
It follows, therefore, that the defendant should be discharged.