People v. Wilson

LENT, J.

Kenneth Vought for defendant. Frank A. Gulotta, District Attorney, for plaintiff. LENT, J. The defendant was indicted for rape, first degree (2 counts), assault, second degree, and incest. The prosecutrix is his half sister, age thirty-six. Upon the trial of the indictment, this court dismissed the first count of the indictment charging rape by force, and the jury found the defendant guilty of the remaining count of rape under subdivision 3 of section 2010 of the Penal Law, assault, third degree, and incest. The defendant now moves for an order arresting the judgment of conviction and setting aside the verdict of guilt as to the rape and incest on the ground that it was contrary to law and against the weight of the evidence. No effort is made to disturb the verdict of guilt of the simple assault. The defendant contends that the jury, by finding him guilty of simple assault only, negatived any intent on his part to commit a rape. He also contends that the crime of incest could not arise from the rapacious act, upon which the jury based its finding, the essence of such crime being an act of intercourse arising from the mutual consent of relatives within the prescribed line of consanguinity set forth in section 1110 of the Penal Law. Since it is well established that where the defendant has conceded the court's jurisdiction by proceeding to trial, judgment after conviction may be arrested only for defects in the indictment (Code Crim. Pro., §§ 331, 467; People v. Jackson, 191 N.Y. 293; People v. Meakim, 133 N.Y. 214; People v. Thompson, 41 N.Y. 1), and People v. Jones, 177 Misc. 922.) It is important to note that the Court of Appeals emphasized that the reason for holding defendant's daughter not to be an accomplice did not rest upon the fact that she could not be indicted for the crime but rather upon the ground that she was incapable of consent. Here we have a clear determination that a statutory rape may be the basis for a conviction of incest but that such conviction may be had as to the male participant only despite the statutory language rendering each punishable. Let us analyze the implications of this holding in the light of the situation presented by this case. The theory of the law creating a statutory rape is that any act of intercourse with a female under the age limit, however accomplished, is without her consent and against her will. In other words, it is declared rape to have intercourse with a female under eighteen years of age whether such intercourse be voluntary on her part or not (Colly v. Thomas, 99 Misc. 158; Penal Law, § 2010). The law "offers resistance for them. It deals with the case as rape, not as a mere statutory offense" (People v. Gibson, 232 N.Y. 458, 461). For this court to perpetuate the holding in People v. Harriden (supra), requires the formulation of a ruling that the cases recognizing statutory rape as a predicate for an incest conviction are a mere exception to the principle there enunciated. It would seem that if the Court of Appeals intended a mere exception it would have said so. Instead, the effect of its ruling is quite to the contrary of People v. Harriden (1 Parker Cr. Rep. 344, supra), in that not only did it recognize the validity of an incest conviction where mutual consent to intercourse was lacking but it parted absolutely with the principle that a conviction for incest is improper where the crime proved is also rape. While this court may be reluctant to depart from the law laid down in prior decisions of our courts which are directly in point in favor of a later ruling which can be arrived at only by implication, we think the implications of the later decisions to be so irresistible that they become self-evident. If, therefore, there may be incest arising from proof of a statutory rape with a relative within the prescribed line of consanguinity, there may be incest arising from proof of first degree rape with such a relative. There is consent in neither. There is force, either actual or implied in law in both. The jury was, therefore, justified in returning a verdict of guilt as to both rape and incest and the charge was proper. The motion is denied. Submit order.