Commonwealth v. Squires

Gray, J. The Gen. Sts. c. 172, § 16, provide that “ when a person indicted for a felony is on trial acquitted by the verdict of part of the offence charged, and convicted of the residue, such verdict may be received and recorded by the court, and thereupon the person indicted shall be adjudged guilty of the offence, if any, which appears to the court to be substantially charged by the residue of the indictment, and shall be sentenced [61] and punished accordingly.” If a less offence is duly charged in the indictment, the case is within this provision, even if one of the elements alleged is not a necessary element of the greater offence. This is clearly shown by the decision of this court, under the corresponding provision of the Rev. Sts. c. 137, § 11, that a man charged with a rape on his daughter might be convicted of incest, although it was not necessary or material, in charging him with rape, to allege that she was his daughter. Commonwealth v. Goodhue, 2 Met. 193. In Commonwealth v. Murphy, 2 Allen, 163, cited for the defendant, in which the verdict returned was similar to that in the present case, the indictment was in the common form of an indictment for rape, and did not allege that the person upon whom the offence was alleged to have been committed was not the lawful wife of the defendant. But so much of the indictment now before us, as has been found to be proved by the verdict of the jury, alleges that the defendant, being a married man and having a lawful wife alive, carnally knew an unmarried girl of the age of twelve years. The only objection taken to this indictment is that it does not expressly allege that he had carnal knowledge of her body. But from very early times, in the law, as in common speech, the meaning of the words “ carnal knowledge ” . of a woman by a man has been sexual bodily connection; and these words, without more, have been used in that sense by writers of the highest authority on criminal law, when undertaking to give a full and precise definition of the crime of rape, the highest crime oi this character. Rex v. Hugo, 30 & 31 Edw. I. appx. 529, 532. Nasegle v. Vide, 11 Hen. IV. 13. Staunf. P. C. 81. 2 Inst. 180. 3 Inst. 60. 1 Hale P. C. 628. 1 East P. C. 434. 1 Russell on Crimes, (Greaves’ ed.) 675. In Commonwealth v. Goodhue, above cited, the indictment which the court held to contain “ all the specifications of a charge of incest, to wit, that the defendant unlawfully had carnal knowledge of the body of his daughter,” did not (as we find by referring to the files of the court) contain the words “ of the body,” or define the carnal knowledge otherwise than this in [62] dictment does, but merely alleged that Moses Goodhue, on a certain day at Andover, “ in and upon Olive Goodhue, of said Andover, spinster, and daughter of him the said Moses, violently and feloniously did make an assault, and her the said Olive Goodhue then and there feloniously did ravish and carnally know by force and against her will.” That case cannot be distinguished in principle from this. The defendant has therefore been duly accused and convicted of the crime of adultery, and may be sentenced for that crime under the Gen. Sts. c. 165, § 3. Exceptions overruled.