People v. Lipski

43 N.W.2d 325, 328 Mich. 194

• Court: Michigan Supreme Court
• Decided: June 27, 1950
• Docket: Docket 67, Calendar 44,613
• Status: Published

Opinions

Bushnell, J.

Defendant Richard Lipski, a married man, drove his truck off the highway and stopped an automobile being driven by a married woman. Lipski got out of his truck, opened the left door by the driver’s seat of the other car and slid in beside the woman. He held her arms, displayed his affections upon her and asked her to have sexual relations with him. She refused. He made no attempt to force her against her will, but admitted that he would have had such relations had she allowed him to do so. The record is silent as to any previous acquaintance between the parties.

An information charging assault with intent to have sexual relations with a married woman, but not with intent to rape her, was filed against Lipski. The court reduced the charge to assault and battery and quashed the remainder. Thereafter the prosecuting attorney nolle prossed that case. Another complaint was signed by the married woman’s husband. The second information charged Lipski with assault on the person named therein, “a married woman, with intent to commit a felony, to-wit: Adultery, he being a married man, but not being then and there married to her.”

Defendant moved to quash this information. The trial judge, after considering the briefs and oral arguments, filed a written opinion. He held that, except as to the charge of assault, no such offense existed as that charged in the information. The State was granted leave to appeal from the court’s order.

The statute under which the information was drawn, CL 1948, § 750.87 (Stat Ann § 28.282) reads as follows:

“Any person who shall assault another, with intent to commit any burglary, or any other felony, the punishment of which assault is not otherwise in this act prescribed, shall be guilty of a felony, punishable by imprisonment in the State prison not more than 10 years, or by fine of not more than 5,000 dollars.”

The scope of this statute is broad and the assault is not limited to felonies of a type similar to burglary. Neither does the language include all other felonies because “a specific intent” is requisite. People v. Lilley, 43 Mich 521, 529.

Adultery, unlike manslaughter which by definition precludes such an intent, is a felony in which intent is a necessary element. 1 Am Jur, p 685.

Defendant argues that adultery, like incest, requires the consent of both parties, and that such consent, being inconsistent with the nature of an assault, negatives the assault and is therefore not a crime under the statute. See, in this connection, DeGroat v. People, 39 Mich 124, and People v. Burwell, 106 Mich 27.

Adultery is defined by statute as “the sexual intercourse of 2 persons, either of whom is married to a third person.” CL 1948, § 750.29 (Stat Ann § 28.218). This statute guards the sanctity of marriage. Where both parties are married it protects each nonparticipating spouse. The spouse of the assaulter should be shielded just as much where the intercourse is with force as where it is with consent. In like manner, the woman who is assaulted and who would be guilty of adultery if she condoned the assaulter’s advances, should have her status fully protected when she refuses and resists.

The controlling factor is the marriage relation, and that exists whether intercourse occurs with or without consent. Consent is not expressed nor implied by the language of the statute, and will not be judicially inserted therein.

A charge of assault with intent to commit adultery is within the scope of the statute under which this information was laid. The facts disclosed in this record place defendant sufficiently within the purview of the statute as to require his trial.

The order quashing the information is vacated and the cause is remanded.

Boyles, C. J., and North, Carr, and Sharpe, JJ., concurred with Bushnell, J.