7 S.E.2d 654 | W. Va. | 1940
Lead Opinion
The defendant, Herman Ray, was indicted and convicted for statutory rape upon Wilma McClure, a female under sixteen years of age. A writ of error to the circuit court of Kanawha County was refused.
The sufficiency of the indictment, which was drawn in the form prescribed by Code,
This Court has held that an indictment, although based upon the statutory form, which omits one of the elements of the offense as defined by statute, is demurrable. Scott v.Harshbarger, Sheriff,
The instant indictment, it seems to us, is defective also because it does not allege that the defendant is a person over sixteen years of age. Such fact is, in our opinion, as much an element of the statutory crime, by reason of its *41
inclusion in the definition, as that of "previous chaste character", and the failure to allege it renders the indictment demurrable. In State v. Wright,
We therefore are of opinion that the demurrer to the indictment should be sustained.
The judgments of the circuit and intermediate courts are reversed, the verdict of the jury set aside, and the indictment quashed.
Judgments reversed; verdict set aside; indictment quashed.
Dissenting Opinion
It strikes me that the part of the opinion discussing the necessity of alleging the age of the accused in an indictment for rape is predicated upon a non sequitur. I agree with what has been said concerning a proviso clause in a penal statute. I do not, however, think that it necessarily follows that the age of the accused becomes a part of the *42
indispensable definition of the offense and that it must be charged in the indictment and proved beyond a reasonable doubt before a conviction can be sustained. Of course, the general rule of statutory construction which distinguishes provisos from the body of the enactment is conceded. However, that rule has not been generally applied to statutory rape, and the clear weight of authority is to the effect that where a statute contains a provision that if a person of a certain age and upward shall have carnal knowledge of a female under a prescribed age, though with her consent, he shall be guilty of rape, the age of the accused need not be alleged in the indictment. See the annotation to the case of Schramm v.People,
Otherwise I am in accord.