COMMONWEALTH v. DELANO, 197 Mass. 166 (1908)

83 N.E. 408

COMMONWEALTH vs. HENRY DELANO.

Supreme Judicial Court of Massachusetts. Suffolk.November 18, 1907.
January 11, 1908.

Present: KNOWLTON, C.J., HAMMOND, LORING, BRALEY, RUGG, JJ.

Unnatural and Lascivious Act. Words, “Copulation.”
A person who commits any unnatural and lascivious act with another person can be convicted under R.L.c. 212, § 27. Copulation is the natural act of coition and is not within the statute, the word being used inaccurately in the opinion in Commonwealth v. Dill, 160 Mass. 536, 537.

INDICTMENT found and returned in the county of Suffolk in August, 1907, with six counts under R.L.c. 212, § 27, each count charging the defendant with committing an unnatural and lascivious act with a person named, the persons named in the several counts being girls from fourteen to about eleven years of age.

In the Superior Court the defendant was tried before Schofield,
J. The jury returned a verdict of guilty; and the judge, being in doubt whether the acts described in the evidence constituted an offence under the statute or whether they should be dealt with at common law, reported the case for determination by this court. If the conviction could be sustained upon the evidence, the verdict was to stand; otherwise, the verdict was to be set aside and such further proceedings were to be had against the defendant as might be authorized by law.

The case was submitted on briefs.

W.R. Scharton, for the defendant.

M.J. Dwyer, Assistant District Attorney, for the Commonwealth.

LORING, J.

The only argument put forward by the defendant is that although the act here complained of was an “unnatural and lascivious act with another person” it was not an act of copulation and that for that reason on the authority of what was stated obiter i Commonwealth v. Dill, 160 Mass. 536, 537, it is an act not within R.L.c. 212, § 27.

It is plain that St. 1887, c. 436, now R.L.c. 212, § 27, was intended to make criminal any and all unnatural and lascivious

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acts with another person. Copulation is the natural act of coition and is not within the statute. It is evident that the word “copulation” was not used accurately in the opinion i Commonwealth v. Dill, 160 Mass. 536, 537.

Verdict to stand.