The People v. . Bransby

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 527 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 529 The testimony of the complainant was artless, frank and ingenuous. There is an air of apparent truth in her narration which strongly commends it to belief. If it is entitled to full credit, the accused was guilty of a criminal and brutal outrage. Her evidence did not establish a case of rape, but it tended to show a very aggravated assault. The only difficulty in sustaining the conviction arises from an erroneous instruction by the presiding judge, that on a state of facts which he assumed to be deducible from the evidence, the defendant must be found guilty of an assault, even if the jury should arrive at the conclusion that the illicit intercourse was with the assent of the prosecutrix. Though the probabilities are against it, it is not impossible that this may have been their conclusion from the evidence; and the judgment was, therefore, properly reversed, unless *Page 530 we are at liberty to infer that the accused was not prejudiced by the erroneous instruction, which related strictly to the crime ofassault, as distinguished from the assault and battery of which he was found guilty. There was some conflict between the testimony of the complainant and that of the defendant's witnesses. The jury were perhaps at liberty to draw unfavorable inferences from her leaving a place of security, at a late hour of the night, in company with a perfect stranger, whose language she neither understood nor spoke; from her following him a considerable distance, and availing herself of the room he provided at the Sherman House, without indicating any objection to his occupying it with her, when his purpose would seem to have been unmistakable; from her permitting the porter to leave the hall while he remained after midnight in her apartment; from her making no outcry at the time of his repeated connections with her, such as might have been heard by the inmates of the adjoining rooms; and from her denial on the following morning that he had abused her, when she was first interrogated by her countrymen in the German language, and in the absence of the accused. Her explanation of these facts may or may not have been satisfactory to the jury. If it was, an error in the charge, as to the hypothetical effect of assent to the illicit intercourse, would be immaterial. But if her explanation was unsatisfactory to the jury, as the judge assumed it might be upon the evidence, it is the right of the accused to demand our judgment on the correctness of the instructions under which he was convicted, and on the further question whether the error, if any, may have tended to his prejudice in the ultimate result. It is insisted by the counsel for the accused that the first two propositions in the charge amounted, in substance, to an instruction that if the evidence established a rape, the jury were authorized to find him guilty of the mere misdemeanor charged in the indictment. It is true that the words used were sufficiently vague and general to give some plausibility to the proposition. But the language of the charge is to be construed in the light of the evidence to which it was applied. *Page 531 The instruction should be read by us as it would be understood by the jury; and as it is manifest that the testimony of the prosecutrix did not establish a case of rape, but did establish reluctance and some degree of resistance, the language employed should be applied to the facts presented, and not to a hypothetical state of facts in which it might have tended to mislead the jury. There was no error in this portion of the charge, if it be fairly construed, as it was evidently intended by the judge, and as it could not fail to be understood by those who had heard the evidence. The third proposition of the judge presents a question of a much more serious character. It assumes that she assented to the illicit intercourse and makes the issue of guilt or innocence depend on the question when she first became aware of his purpose to ask the boon she granted. The jury were instructed, as matter of law, that if the defendant took her into the room and locked himself in with her, with intent to have connection with her, she being ignorant of his intent, then he is guilty of an assault, although she may have afterwards assented to his wishes, and to his having connection with her. The Supreme Court was right in holding that this was a manifest legal error. It is suggested that the instruction might be sustained on the theory that though the complainant consented to the material point of illicit intercourse with the defendant, the transaction admitted of subdivision, and the jury were, therefore, bound to assume, as matter of law, that the locking of the door was against her will. No such legal presumption exists; and if so artificial an inference could be drawn from the facts, it should have been by the jury and not by the judge. The proposition cited from Buller, that every imprisonment includes a battery, and every battery an assault, has relation to the forms and averments appropriate to the civil remedy for false imprisonment. It is wholly inapplicable to a case like the present, where the locking of the door was not objected to by the complainant, and was a mere precaution for the privacy of an immoral act, to which, as the judge assumes, both the parties consented. *Page 532 The charge should be construed as it was intended, and as it was doubtless understood by the jury. The theory of the judge was, that though the improper connection was the voluntary act of both, and though the defendant neither used force nor intended it, he was still guilty of a criminal assault, unless she acceded to his purpose before she was aware that he entertained it. A criminal conviction for an assault cannot be upheld where no battery has been committed, and none attempted, intended or threatened by the party accused. It is indispensable to the offense that violence to the person be either offered, menaced or designed. It is claimed that an exception has been recognized by some of the authorities to the application of the general rule in this particular class of cases. No such exception exists as applicable to an indictment for simple assault and battery. A cursory glance at some of the decisions might lead to an opposite impression; but this disappears on particular examination, if we keep in view the nature of the accusation in each case, and the statutes to which the judges respectively refer. A brief review of the authorities on this subject will show that they are in harmony with the rule we have stated. It will be observed that in several instances, the question turned on the validity of a consent procured by fraud, and applicable, not to the indignity committed, but to a supposed legitimate purpose of the party committing it. Thus, it was held in Rosinski's Case, that a conviction for assault could be sustained where a medical man, with his own hands, stripped the clothes from a female patient under the fraudulent pretense that it was necessary to enable him to judge of her disease. (1 Moody's Crown Cases, 19.) In Nichol's Case a similar conviction was sustained, where a teacher took indecent liberties with his female pupils, who neither assented to his advances nor resisted them. (Russell Ryan, 130.) In Regina v. Case, it was held that a physician was properly convicted of assault and battery in debauching a girl of fourteen, who did not assent to carnal connection, but made *Page 533 no resistance to his act, from a bona fide belief that he was, as he represented, treating her medically for her disorder. The judges sustained the conviction, on the distinction between actual assent to sexual intercourse, and acquiescence by passive non-resistance, in an act of the physician, of the nature of which she was ignorant. (1 Eng. L. Eq., 544.) In Jackson's Case, it was held that a party who had carnal knowledge of a married woman, and effected his purpose by fraudulently personating her husband, could not be convicted of a rape. (Russell Ryan, 487.) In Saunder's Case a similar imposition was practiced on a married woman, who consented, supposing the party to be her husband, but repelled him at once on discovering the fraud, and immediately attempted suicide. On the trial of the party for rape, Baron GURNEY instructed the jury, that though her consent was procured by fraud, the prisoner could not be convicted of the principal offense; and that he would have been bound to direct a general acquittal, but for the statute of 1 Vict., ch. 85, which provided for such a case, by authorizing a conviction for a simple assault under an indictment charging a felony against the person. (8 C. P., 265.) In Banks' Case, the prisoner was indicted for feloniously assaulting and debauching a girl nine years of age. The act was with her assent; but there was some doubt on her evidence as to the consummation of the extreme offense. It was insisted by the counsel for the crown, that if the proof failed to establish the felony, the prisoner might be found guilty of an assault. Justice PATTERSON held that though the consent of a child of nine years of age was unavailing as a defense to the felony under the statute of rape, it was a bar in respect to an assault; and he instructed the jury that unless the prisoner effected his felonious purpose, they must render a general verdict of acquittal. The jury found him guilty of the capital crime. (34 Eng. Com. L., 531.) In Meredith's Case, there were two counts in the indictment; one for assault with intent to commit a rape, and the other for a common assault. The first count was abandoned; but a conviction was claimed on the second, on the ground *Page 534 that the girl was between ten and twelve years of age, and that the imposition of hands on her for such a purpose was an assault, even though she subsequently consented. Lord ABINGER held that her assent to the act was fatal to the prosecution, and instructed the jury that to sustain a conviction for assault below the grade of felony "you must show an assault which couldnot be justified if an action were brought for it, and leave andlicense pleaded." The prisoner was accordingly acquitted. (34 Eng. Com. L., 539.) In Martin's Case, the complainant was ten years old. The indictment contained a count for an assault with intent to debauch her, and another for mere assault. The jury found that the prisoner was guilty, but that the girl assented. The case was reserved for the consideration of the fifteen judges; and they were unanimously of opinion, that "as the child consented, itwas not an assault," but that he might have been indicted and convicted under the statute which makes it a misdemeanor, without reference to consent, to have carnal knowledge of a child between ten and twelve years of age. (38 Eng. Com. L., 85.) In the case of The Queen v. Read and others, the three defendants were convicted of an assault on a girl nine years of age under the following circumstances: The defendants went with the girl to a hayloft. When they first began to take liberties with her she showed some unwillingness, but eventually she ceased to offer opposition and apparently assented. Each of the defendants, in succession, had connection with her. The verdict of the jury was "Guilty, the child being an assenting party, but from her tender years she did not know what she was about." The case was reserved, and on argument the conviction was quashed; all the judges being of opinion that the eventual assent of the girl was a fatal objection. (13 London Jurist, 68.) It is claimed that the case of The People v. Hayes established a different rule; but it will be found on examination that it is in harmony with the authorities above cited. It was there held that the accused was properly convicted of an assault with intent to commit a rape on a child under ten *Page 535 years of age, whom he had decoyed for that purpose into a building; and this, though detected in the attempt while standing in a state of indecent exposure at a distance of five feet from her person. The decision was put upon the ground that the act he was attempting was one of rape, on a child of an age at which it was incapable of legal consent, under the statute defining that offense. Judge COWEN, in delivering the opinion of the court, conceded that to constitute an assault, there must be an intention "of using actual violence against the person." (1 Hill, 351.) If the law were otherwise, seduction and criminal conversation would have been indictable offenses in this State from the beginning; for they always involve a sufficient degree of force to constitute an assault and battery, except for the express or implied assent of the party. In the present case, the complainant was an adult; and though she labored under the disadvantage of not speaking the same language with the accused, she ingenuously admits that, through a previous misadventure, she knew the nature of the act, to which the instruction of the judge assumes that she assented. It is quite probable that there was really no such assent; but if there was, she could not recover against the defendant in a civil action, nor could he lawfully be convicted of a criminal assault.Volenti non fit injuria. We concur, therefore, with the court below in holding the third instruction to be erroneous; but a majority of the members of this court are of the opinion that the error could not, by possibility, have operated to the prejudice of the accused. The direction, in the case supposed, was to convict the prisoner of an assault; and the fact that he was not found guilty of the minor offense, but of the assault and battery charged in the indictment, is deemed conclusive evidence that the verdict was intended to negative any assent to the act on the part of the complainant. It is not without some hesitation that we have arrived at this conclusion. It is the right of the citizen accused of crime to claim the benefit of a fair trial and a true and just exposition of the law applicable to the offense charged. When the law in such a case has been erroneously presented, it should not be assumed on mere *Page 536 speculation, however probable or plausible, that the jury were not misled by the error of the judge, or that they understood his language in a restrained and technical sense, rather than in its popular and ordinary import when used in a like connection. But when the form of the finding is such as to show that the error was harmless as matter of legal necessity, it is not open to correction in any appellate tribunal. On this sole ground, the judgment of the court below must be reversed, and the conviction in the Court of Sessions affirmed. All the judges concurred in the foregoing opinion except POTTER, J., who read an opinion reaching the same result on the ground that there was no error in the charge.