Commonwealth v. Rowe

Massachusetts Appeals Court

Commonwealth v. Rowe

465 N.E.2d 1220, 18 Mass. App. Ct. 926, 1984 Mass. App. LEXIS 1531

CourtMassachusetts Appeals Court

DecidedJuly 9, 1984

StatusPublished

Cited by11 cases

This text of 465 N.E.2d 1220 (Commonwealth v. Rowe) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commonwealth v. Rowe, 465 N.E.2d 1220, 18 Mass. App. Ct. 926, 1984 Mass. App. LEXIS 1531 (Mass. Ct. App. 1984).

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Opinion

On an indictment for statutory rape (G. L. c. 265, § 23) of a fifteen year old child, the defendant was convicted by the jury of indecent assault and battery of a person fourteen years of age or older (G. L. c. 265, § 13H, inserted by St. 1980, c. 459, § 5). The defendant argues that the judge erred [927]*927in failing to instruct the jury that lack of consent by the victim was an element of the latter offense. (The trial was had before the decision of the Supreme Judicial Court in Commonwealth v. Burke, 390 Mass. 480, 484 n.4 [1983], which so held.)

John C. Gates for the defendant. Charles K. Stephenson, Assistant District Attorney, for the Commonwealth.

The problem with the conviction is more far reaching. Lack of consent is not an element of statutory rape, and it follows that indecent assault and battery is not an offense included within the indictment. See Commonwealth v. Rodriguez, 11 Mass. App. Ct. 379, 380-382 (1981), and cases cited. We must consider the point on our own motion, because the scope of the indictment goes to the jurisdiction of the Superior Court. Commonwealth v. Burns, 8 Mass. App. Ct. 194, 196 (1979). It is immaterial that the defendant, by requesting the lesser-included-offense instruction, “invited” the error (see Lannon v. Commonwealth, 379 Mass. 786, 792-793 [1980]), because the parties may not by consent, conduct, or waiver confer jurisdiction on the court. Second Bank-State Street Trust Co. v. Linsley, 341 Mass. 113, 116 (1960). Tosti v. Ayik, 386 Mass. 721, 725 (1982). However, the fact that the court had no jurisdiction under the present indictment to convict and sentence the defendant for indecent assault and battery means that the defendant was not put in jeopardy with respect to that offense and thus may now be tried for thát offense on a new indictment so charging. Commonwealth v. Roby, 12 Pick. 496, 501 (1832). Commonwealth v. Gosselin, 365 Mass. 116, 122 (1974). Commonwealth v. Burns, supra at 198 n.2.

Judgment reversed.

Verdict set aside.

Judgment for the defendant.

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On an indictment for statutory rape (G. L. c. 265, § 23) of a fifteen year old child, the defendant was convicted by the jury of indecent assault and battery of a person fourteen years of age or older (G. L. c. 265, § 13H, inserted by St. 1980, c. 459, § 5). The defendant argues that the judge erred [927]*927in failing to instruct the jury that lack of consent by the victim was an element of the latter offense. (The trial was had before the decision of the Supreme Judicial Court in Commonwealth v. Burke, 390 Mass. 480, 484 n.4 [1983], which so held.)

John C. Gates for the defendant. Charles K. Stephenson, Assistant District Attorney, for the Commonwealth.

The problem with the conviction is more far reaching. Lack of consent is not an element of statutory rape, and it follows that indecent assault and battery is not an offense included within the indictment. See Commonwealth v. Rodriguez, 11 Mass. App. Ct. 379, 380-382 (1981), and cases cited. We must consider the point on our own motion, because the scope of the indictment goes to the jurisdiction of the Superior Court. Commonwealth v. Burns, 8 Mass. App. Ct. 194, 196 (1979). It is immaterial that the defendant, by requesting the lesser-included-offense instruction, “invited” the error (see Lannon v. Commonwealth, 379 Mass. 786, 792-793 [1980]), because the parties may not by consent, conduct, or waiver confer jurisdiction on the court. Second Bank-State Street Trust Co. v. Linsley, 341 Mass. 113, 116 (1960). Tosti v. Ayik, 386 Mass. 721, 725 (1982). However, the fact that the court had no jurisdiction under the present indictment to convict and sentence the defendant for indecent assault and battery means that the defendant was not put in jeopardy with respect to that offense and thus may now be tried for thát offense on a new indictment so charging. Commonwealth v. Roby, 12 Pick. 496, 501 (1832). Commonwealth v. Gosselin, 365 Mass. 116, 122 (1974). Commonwealth v. Burns, supra at 198 n.2.

Judgment reversed.

Verdict set aside.

Judgment for the defendant.

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Bluebook (online)

465 N.E.2d 1220, 18 Mass. App. Ct. 926, 1984 Mass. App. LEXIS 1531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-rowe-massappct-1984.

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