Maurice H. Goldstein, and R. R. McWhinney, Pittsburgh, for appellant.
William S. Rahauser, Dist. Atty., Joseph I. Lewis, Asst. Dist. Atty., Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.
[ 166 Pa. Super. Page 626]
The defendant was convicted on separate indictments charging, respectively, sodomy*fn1 and assault and battery with intent to ravish. He filed motions for new trial and in arrest of judgment, which were refused, and received identical concurrent sentences. These appeals followed.
Both offenses were committed upon a little girl aged six and one-half years, who was described by the trial judge as 'very attractive' and 'of unusual [mental] capacity for her age.' The perversion committed by the defendant was cunnilingus,*fn2 in which, of course, this little victim was the pathic. There was a wealth of testimony not only from the victim but from others as to the identity of this defendant, who lured this child into his auto truck. The defendant does not challenge the evidence of identification. He contends that penetration was an essential fact to be proved, and that there was no evidence thereof. In examining this contention the evidence clearly established every possible ingredient of the offense, except that there was no direct evidence
[ 166 Pa. Super. Page 627]
of penetration. In Commonwealth v. Donahue, 136 Pa. Super. 306, 7 A.2d 13, the female, who was the pathic in the same type of sodomy, was convicted. An eyewitness testified but, of course, the very position of the parties made it impossible for him to determine whether there had been penetration. The only other evidence on this branch of the case had to do with the appearance of the face of the coperpetrator of the crime. This Court held that the element of penetration could be shown by circumstantial evidence, especially when the position of the parties had been proved. Such is the case here. The defendant had committed a well-known type of perversion and the jury was quite justified in finding that the position he was in was circumstantial proof of penetration.
The defendant was also convicted of assault and battery with intent to ravish, and contends that the evidence was insufficient to establish the commission of that crime. The victim here was six and one-half years of age, and under the common law a child under the age of seven is conclusively presumed to have no capacity to commit a crime, and therefore cannot be either a principal, an accomplice or an accessory thereto. She lacked the capacity to commit an assault and battery and likewise lacked the capacity to consent to its commission upon her. See Commonwealth ex rel. Case v. Smith, 134 Pa. Super. 183, 3 A.2d 1007. The evidence sustained the jury's verdict that the defendant committed an assault and battery upon her. It may have been what is referred to as an 'indecent assault,' but this comprehends an assault and battery. Commonwealth v. Gregory, 132 Pa. Super. 507, 1 A.2d 501, and to this she had no capacity to consent. The touching of her person was clearly established, as was the fact that he at least placed his private parts against her. But the appellant contends that even though guilty of assault
[ 166 Pa. Super. Page 628]
and battery, there was no proof that he 'intended to commit rape forcibly and against the victim's will if he could not obtain [her] consent.' But as we have seen, the victim had no capacity to consent, and this is not a case where a statute fixes an age of consent, but a case of an incapacity at common law. In the many cases of so-called consensual rape*fn3 in which this Court has held (because of the acquiescence of the victim) that the defendant may not be convicted of some degree of assault and battery, it always appeared that the victim was past the age of seven. Indeed, in Commonwealth v. DeGrange, 97 Pa. Super. 181, where the victim was between eight and nine years of age (and at common law there was a rebuttable presumption of lack of capacity to consent), this Court came to the same conclusion as we reach in the present case. A defendant may be found guilty of assault and battery with intent to ravish a female child under the age of seven, even where there was no proof of the victim's lack of consent, or that the acts of the defendant were against her will, if the evidence sustained a finding of his intent to have intercourse by at least some slight penetration.
To constitute the crime of rape there must be penetration, however slight. (Res in re, but entrance in the labia is sufficient: 44 Am.Jur., Rape, § 3). Such slight penetration would not necessarily hurt the child, and the completed crime could thus be committed without injury to her. The Commonwealth in its indictment alleged, and the jury found, that there was no penetration. But the question still remained with the jury whether the defendant intended some ...