*1 ex re l. Denver Hershel Cain Skeen, Warden, etc. J. Orel
(No. 10526) January Decided 1953. February Submitted 1953. Lovins, Judge, concurring. Pence,
Richard F. for relator. Fox, John General, G. Attorney T. D. Kauffelt, Assistant *2 General, Attorney for respondent. Judge:
BROwning, relator, Cain, Denver Hershel a prisoner in the State Penitentiary at Moundsville, invoked the original jurisdiction of this by Court filing it, with on November 11, 1952, his petition for a writ of habeas corpus ad sub- jiciendum to be directed Skeen, to Orel J. warden of this penal A institution. Court, writ was issued by on 17, 1952, November commanding respondent to pro- duce the body the relator before this Court and show cause why he detains and restrains the relator from his liberty. The writ was made returnable on January 1952, at which time the respondent produced the relator and filed a demurrer to the petition upon ground it is insufficient for the an law reason that indictment for statutory rape need not allege of the accused.
The offense for which the relator is serving sentence in the State Penitentiary Code, 61-2-15, is statutory, read- ing “If follows: male any a female carnally know person, wife, not his against force, her if any will or male over the years carnally sixteen know a female person previous character, wife, chaste not his under that age, he and, shall be of a felony, conviction, shall punished be death or with confine- ment in life, for penitentiary the discretion of the court, or, if jury add to its verdict recommendation for mercy, with confinement in the for penitentiary Provided, less than five nor more than twenty years: that this section shall not apply any male of age carnally knows a female over * * *” years of age twelve with her free consent. subsequent to the enact- ment the provision quoted, last undertook to set out
forma offenses, certain criminal and the following 62-9-7, form provided by. for the offense of statutory rape:
[**] if “And the female child under the be years, the indictment shall sufficient if be form, it be in tenor or effect as after follows form following the in section one [§ 6263]: A_, “That on of._, the_day nineteen_____in said of_, in and county B_, upon one wife, child, a sixteen not his under the assault, feloniously did make an B_, then her, the said know, feloniously carnally and there did of the State.” dignity peace *3 of Wirt by grand jurors returned The indictment indictment form, statutory but County follows the Code, 61-2-15, in that form from statutory vary and the “a over the male phrase neither contains the defendant, the relator to the years” referring of sixteen in that the indictment which here. The relator contends fact that it by virtue he was void pleaded he a male over allege did not was restrain- void, illegally that he is he which ed, extraordinary relief and entitled to in this Court. seeks a prisoner jurisdiction in
It is established well indictment, and deter- in a void the defects cannot waive case in in this was question that the mination In he seeks. to the relief entitles relator void V. as 2 reads pt. syl., S. E. 2d. Va. 7 Ray, W. by as defined statutory rape “An indictment follows: prosecutrix Code, 61-2-15, fails to which is and that the accused chaste character of previous was defective, notwithstanding years over in the form set conformity with same was drawn in that case was Code, 62-9-7.” The indictment forth in demurrer, by attacked and the Court held that the de- murrer should have been sustained because indict- failed charge prosecutrix ment that the “of previous was character”, chaste and that the defendant “a was years over sixteen age.” majority this Court held the indictment invalid upon grounds, Judge both Kenna dissenting part, and exact question presented this case. general does attorney urge not a differentiation cases upon these ground that one the indictments promptly seasonably demurrer, attacked by
in the instant case that the pleaded guilty defendant indictment, year and a and a half thereafter seeks his freedom upon ground the indictment to which However, he pleaded guilty was void. counsel does strongly urge Ray, that State v. supra, be specifically overruled in so far as it holds allegation that an that the defendant is a male person over of sixteen validity essential to the of the indictment.
The fact that the
this State has adopted
form indictment
not
does
make such valid if it fails
to incorporate therein all of the elements of the offense
defined
v. Harshbarger,
statute. Scott
Sheriff, 116
187;
W.
McGinnis,
180 S. E.
State v.
Va.
116 W. Va.
300.
473,
Virginia that: No person shall be held treason, to answer for felony crime, or other cogniz- *4 able a on justice, unless presentment or indictment * * *” of a grand jury. Article, 14 of same Section referring misdemeanors, trials crimes and contains * * “* trials, the following: In all such the accused shall fully be and of plainly informed the character cause and accusation, of and be confronted with the witnesses * * him, A statutory form indictment to be valid must be in full compliance provisions with quoted last section of the Constitution.
810 of the cases in other reported jurisdic-
An examination v. Ray, supra, represents tions indicates that minority question. view * “*.* 575, People Yek,
In v. said: Ah 29 Cal. the court providing punishment, ‘Any person After for the it adds: shall age upward, of fourteen who have age child any carnal female under knowledge consent, ten either or her shall be with without adjudged rape,’ of the crime of etc. The indictment averring the of the good would been without have * * * change fact it averred does not child. that is rule, necessary and make it to aver the * *” party who commits the offense.* 353, court, Wessel, in 98 Cal. People California P. in Ah Yek following the same rule laid down is case, point as “The first made that the stated follows: to the overruling court erred in defendant’s demurrer on did not state facts ground information that it offense. The information public sufficient to constitute child upon the under charges rape that the defendant age of 14 does not state years, but years, or, if under male, or over the was required by age, possessed physical ability, that he commit This 262 of Penal the offense. section of com- necessary. incapable If the defendant defense; offense, may shown mitting the such fact be capable implied he was but the averment feloniously he committed the wilfully charge *”* act.* cases from other many jurisdictions There are that: Jur., Rape, In 44 we find same effect. “* * Am. § * weight authority, indictments drawn By the a certain any providing under statutes knowledge carnal a female shall have upwards consent, although her shall be a certain rape crime of need not guilty of the adjudged is, however, not This rule of the defendant. held in a statute of construing been It has universal.
811 that kind that an indictment for the offense must allege that the accused was at statutory the time upwards, as the offense cannot be by younger committed person.”
The West Virginia cases of v. 91 Wright, W. Va. 500, 764, 113 S. E. and State Tippons Meadley, v. 91 504, 751, Va. that, W. 113 E.S. hold under the law in effect at time were they decided, it was not in an necessary to statutory rape allege accused, However, matter of defense. under the provisions 15, 144, Chapter 19.18, Barnes § time, effect at that the provisions of the statute applicable the age above which the accused would be fixing of the offense in the of a proviso. form In State v. * * “* Ray, supra, this Court said: The rule of criminal State, pleading, prevailing this does require not negative an indictment what comes into the statute by * *” way of proviso.* support Cited in thereof were the Wright, and other Tippons cases. To the same effect is Schramm v. 16, 220 Ill. N. E. People, 77 117.
It will be noted from an examination of the authorities upon which, stated, this subject, represent heretofore view, majority contrary and are to the holding Ray, Court in State v. their supra, that conclusion that it unnecessary the accused in an indictment for is based rape upon theory incapacity charged, of the male to commit offense properly agree matter of defense. We with the contention counsel for enunci- principles and with Vineyard, in State 93 ated Va. S. E. W. necessary negative
it is generally presumption of an infant fourteen incapacity him charged commit the crime in an indictment. Miller, have no quarrel Judge statement of We case, effect Vineyard wrote the to the opinion is, least, that: “We think it at the fact that the accused discretion’, is within ‘the as some dubious it, defense, books describe matter of and when cast state of fact is the burden is then shown showing notwithstanding his the accused was *6 and for crime.” capax, criminally responsible doli his case, In the an Vineyard the defendant was eleven old crime year charged with the of murder. If boy we to to this the attempt apply principle well established State, crime of say must statutory rape in this we it was the intention of to extend the Legislature the “dubious male from fourteen age of discretion” of the sex years type to rule one of only the in apply case, criminal to all permit applicable and the rule general other While years. criminal cases to remain at fourteen to Legislature may authority the of this State have the an fix over all be arbitrary age persons may which male indictment, in guilty of offense this charged any legislative body case neither it nor other or judicial a year can fix or the male day, the month when committing of the sexual person actually capable becomes They beginning act. can no more fix a date of fix the capacity person they such in a male than can date of its and be accurate in the ending, probably would less former than in the It is well established latter. elsewhere, an infant under the age jurisdiction, incapable years conclusively presumed of seven to be crime; ages infant that an between committing doli the burden prima incapax, seven fourteen is facie to upon presumption overcome this over convincing proof, clear and and that all persons therefore, age presumed capable, of fourteen are contrary. These rests them to show burden criminal cases applicable of law are all principles of this for some including Legislature rape. reason, at a male changed age person which from to sixteen be offense fourteen would present It an years. is obvious from examination no had even Legislature statute that intention age under the inferring person that a male act, the sexual because years incapable performing “Provided, shall Code, 61-2-15,says: that this section years male undér sixteen who apply any carnally knows female over years twelve consent.”, her free “Any further that: female sixteen, over the years shall carnally know any male person, husband, not her shall be * guilty of a misdemeanor,*
It is apparent not attempting to fix the at age which a male could perform act, sexual and that it change was not attempting well established rule of law in this that all jurisdiction persons over presumed fourteen to be are capable of crimes, all committing and are legally respon- sible therefor. earliest English cases indicate that it was necessary under the common for force to be used law by a male person constitute person to *7 the offense of rape regardless of the of age parties. the The crime of forcible rape may be committed aby boy under the of years law, under and he our is subject prosecution to under legal prin- well established ciples in the same manner as he if had committed some other crime. The of Legislature very this State has properly prerogative exercised its to crime create new separate and apart from the common of rape law crime involving sexual relationship between the sexes opposite circumstances, under certain set out in specifically If the person 61-2-15. is over the of sixteen or, years, age, previous under that chaste not of character, or, if accused, she be the wife of the this offense person, cannot be to the male he chargeable though does have sexual relations Those certainly with female. are hand, essential elements crime. On the other if person day the male is one years age, under sixteen he may, complete immunity, in sexual engage re- ages lations with a female between the of twelve person and contem- sixteen. It would seem that plated might youths that such sexual acts occur under and make elected not to the male responsible juvenile more lasciviousness Therefore, person. opinion than the female we are be, of the male was to and intended our is, rape crime of an essential element of the as of the female statute, is much of it part and as sexual relations chastity having or her person, prior fully plainly The relator was not with the relator. of the accusation informed of the character cause III, Article of the him, Section required by inasmuch as the indictment Constitution of this of the him failed to contain one charging with the offense he have alleged crime material elements was committed, failed to contain the and since that he a male over material was allegation is void. of sixteen the indictment Inasmuch as the indictment which defendant he is now plea guilty, entered virtue of which void, Moundsville, at Penitentiary confined the State it Court the writ opinion is the issued, subjiciendum, ad corpus habeas heretofore cus- release the relator from shall forthwith respondent tody. discharged.
Relator Lovins, Judge, concurring: relator,
I concur but do not discharge I agree point in the first following should be words “* * * syllabus: prosecutrix * * previous chase character *8 do not us on
We have such before the record. question from State Though syllabus point first quoted Ray, part quoted syllabus point relating the chaste character could and should prosecutrix prosecutrix have been deleted. The chaste character of the duly indictment here considered alleged question proceeding. hence that is not before us in this only question us is the failure the state before of sixteen years. the relator was over I of an not be syllabus opinion think should bur- decision; are point dened with statements which hence criticism.