Commonwealth v. Kinner

• Decision Date: 15 November 1939
• Docket Number: 195-1939
• Parties: Commonwealth v. Kinner, Appellant
• Court: Pennsylvania Superior Court

9 A.2d 177

137 Pa.Super. 256

Commonwealth v. Kinner, Appellant

No. 195-1939

Superior Court of Pennsylvania

November 15, 1939

Submitted September 26, 1939

Appeal from judgment and sentence of O. & T., Bradford Co., May T. 1939, No. 1, in case of Commonwealth v. Jerry Kinner.

Indictment charging statutory rape. Before Culver, P. J.

The facts are stated in the opinion of the Superior Court.

Verdict finding defendant guilty of an attempt to rape, and judgment and sentence thereon. Defendant appealed.

Error assigned, among others, was refusal of motion in arrest of judgment.

Judgment affirmed.

John P Vallilee, for appellant.

Edwin P. Young, District Attorney, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker Rhodes and Hirt, JJ.

OPINION

Keller, P. J.

The main contention of the appellant in this case is squarely ruled against him by our decision in Com. v. Orris, 136 Pa.Super. 137, 7 A.2d 88, where we held, in an opinion by Judge Cunningham, in which he fully discussed the subject, that a defendant indicted in a single count drawn under section 91 of the Penal Code of 1860, P. L. 382, as amended by Act of May 19, 1887, P. L. 128, for "statutory rape", may be convicted under section 50 of the Criminal Procedure Act of March 31, 1860, P. L. 427, of an attempt to commit that felony.

The other assignments of error relate to procedural matters, none of which requires a reversal of the judgment.

(1) The indictment charged the crime substantially in the language of the Act of Assembly prohibiting it and was, therefore, good and sufficient in law: Act of March 31, 1860, P. L. 427, sec. 11, 19 PS sec. 261; Williams v. Com., 91 Pa. 493.

(2) It was not necessary to charge in the indictment that the act was done 'feloniously'. The Act of 1887, supra, provides that if any person, being of the age of sixteen years and upwards, shall unlawfully and carnally know and abuse any woman child under the age of sixteen years, with or without her consent, such person shall be adjudged guilty of felonious rape. The indictment is sufficient, in this respect, if it charges the unlawful commission of the act prohibited and made punishable by the statute aforesaid. The statute itself declares such crime to be a felony, with the accompanying effects and results following conviction of a felony. Since the adoption of the Criminal Procedure Act of 1860, P. L. 427, (see Williams v. Com., 91 Pa. 493, 502) which the report of the Commissioners on the Penal Code shows was intended to do away with technical niceties in criminal pleading, whereby guilty persons unwarrantably escaped their just punishment, it is only where the crime consists in doing something unlawful with intent to commit a felony -- such as burglary, felonious entry, and similar crimes -- that it is necessary to charge in the indictment that it was done feloniously (Com. v. Carson, 166 Pa. 179, 30 A. 985), or with intent to commit a felony. Where the statute simply declares the forbidden act to be a felony, it is sufficient to charge the doing of the unlawful act substantially in the language of the statute, and it is not essential that the indictment charge that it was done feloniously; for the statute attaches to a conviction of the crime the consequences attending the commission of a felony. The case of Mears v. Com., 2 Grant 385, was decided before the adoption of the Criminal Procedure Act of 1860, which did away with many of the formal technical requirements of criminal pleading in force prior thereto. But see, in connection therewith, Stout v. Com., 11 Serge. & Rawle 177.

(3) The use of the words 'female child', instead of 'woman child', did not invalidate the indictment. Used in connection with the word 'child', which implies a human being ^[1] , the words 'female' and 'woman' are synonymous. They are used, as meaning the same thing, for example, in the Penal Code of 1860, supra, in sections 91, 92 and 93 relating to rape and assault with intent to commit rape; Section 41, relating to seduction; the Act of June 7, 1911, P. L. 698, relating to pandering.

(4) The conviction will not be set aside, after a full and fair trial, at which the defendant, who was represented by counsel, was sworn as a witness in his own behalf and denied the commission of the crime, because the record fails to show the entry of a formal plea. This point was not raised in the court below. If it had been, the court's notes might have shown that the defendant pleaded 'not guilty' at bar,...