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11/02/77 COMMONWEALTH v. ALFRED GALLANT

November 2, 1977

COMMONWEALTH
v.
ALFRED GALLANT



Franklin. Indictment found and returned in the Superior Court on May 6, 1975. A motion for a new trial was heard by Lynch, J. The Supreme Judicial Court granted a request for direct appellate review.

Hennessey, C.j., Quirico, Braucher, Kaplan, & Liacos, JJ.

SYLLABUS BY THE COURT

Carnal Knowledge. Unnatural Sexual Intercourse. Due Process of Law, Vagueness of statute. Words, "Unnatural sexual intercourse."

The opinion of the court was delivered by: Quirico

Analysis of the constitutional prohibition against vague criminal statutes. [579-581]

History of G. L. c. 265, § 23. [581-585]

Discussion of statutes related to G. L. c. 265, § 23. [585-587]

Discussion of changes in the scope of statutes governing rape and deviate sexual behavior in other jurisdictions. [587-588]

Discussion of the rape provision of the Model Penal Code. [588-589]

The term "unnatural sexual intercourse" as used in G. L. c. 265, § 23, was not vague as applied to a defendant's act of compelling fellatio by a seven-year-old girl. [590]

A Judge of the Superior Court, in a jury waived trial, found the defendant guilty of abusing and having unnatural sexual intercourse with a child under the age of sixteen years in violation of G. L. c. 265, § 23, and of committing an indecent assault and battery on a child under the age of fourteen years in violation of G. L. c. 265, § 13B. *fn1 He was sentenced to imprisonment in the State prison for a term of not less than five nor more than seven years on the first charge, and for a concurrent term of not less than three nor more than five years on the second charge.

He initially sought to have his sentences reviewed by the Appellate Division of the Superior Court (see G. L. c. 278, §§ 28A, 28B), but later withdrew his appeal. There was apparently no attempt to pursue a direct appeal on the merits of the convictions, rather only the abortive attempt to have the sentences modified.

Eight months after conviction, the defendant, now represented by new counsel, filed a motion for a new trial, which was denied. The proceedings were made subject to G. L. c. 278, §§ 33A-33G. The defendant appealed from the denial of his motion for a new trial, and we granted his application for direct appellate review. G. L. c. 211A, § 10(A).

The sole assignment of error is that the Judge erred in denying the motion which contended that G. L. c. 265, § 23, which prohibits " sexual intercourse or unnatural sexual intercourse, and [abuse of] a child under sixteen years of age," *fn2 is, in the words of the assignment of error, "not clearly defined and is insufficient as a matter of law to allow a citizen to be cognizant of the type of conduct which the statute intends to prohibit and . . . is ...


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