Foxwell v. State

• Decision Date: 07 June 1924
• Docket Number: 13.
• Citation: 125 A. 893,146 Md. 90
• Parties: FOXWELL v. STATE.
• Court: Maryland Court of Appeals

125 A. 893

146 Md. 90

FOXWELL v. STATE.

No. 13.

Court of Appeals of Maryland

June 7, 1924

Appeal from Circuit Court, Dorchester County; Joseph L. Bailey and Robt. F. Duer, Judges.

"To be officially reported."

Roy Foxwell was convicted of carnal knowledge of a female, and he appeals. Affirmed.

Argued before PATTISON, URNER, ADKINS, OFFUTT, and DIGGES, JJ.

LeRoy L. Wallace and V. Calvin Trice, both of Cambridge, for appellant.

Robert H. Archer, Asst. Atty. Gen. (Thomas H. Robinson, Atty. Gen and A. Stengle Marine, State's Atty, of Cambridge, on the brief), for the State.

URNER J.

The indictment in this case, by the first of its two counts charged that the appellant, on July 22, 1923, in and upon a designated female, not his wife, between the ages of 14 and 16 years, did make an assault, and then and there did unlawfully and carnally know her, contrary to the form of the act of assembly in such case made and provided, and against the peace, government, and dignity of the state. Upon this charge the appellant was tried and convicted; a demurrer to the indictment having been sustained as to the second count which attempted to allege an assault with intent to ravish.

The demurrer to the indictment raised the first questions to be considered on this appeal. The count on which the appellant was tried is said to be demurrable on the ground of duplicity, because it accused him of having assaulted, and also of having carnally known, a girl who was between the ages of 14 and 16 years. This objection was properly overruled. It was evidently not intended by the first count of the indictment to charge two distinct offenses. The use of the phrase "did make an assault" was probably suggested by its employment in the common form of indictment for rape. 3 Bishop's Crim. Proc. (2d Ed.) § 949.

While force is not an essential element of such a crime as the one of which the appellant was accused and convicted, the legal incapacity of the prosecuting witness to consent to the act suggests a legal implication of assault in its commission. But, whether or not the allegation of an assault was appropriate, it was certainly unnecessary, and may be rejected as surplusage. State of Erickson, 45 Wis. 86; Bishop on Statutory Crimes, § 486; 4 R. C. L. 191; 31 C.J. 747. The specific charge against the appellant was that of having carnal knowledge of a female, not his wife, who was between the ages of 14 and 16 years, contrary to section 422 of article 27 of 3 Code Pub. Gen. Laws, and the indictment sufficiently made that accusation.

The Code section just cited concludes with a proviso that it shall not apply to male persons under the age of 18 years. It was argued that the indictment should have alleged the appellant's age to have been beyond the limit which the proviso specified. This was not a necessary averment. The restriction by the proviso as to the application of the statute, according to the age of the accused, afforded a possible ground of defense, which the indictment was not required to anticipate and negative. The provision was not incorporated in the description of the offense with which the statute was concerned. It was an exemption provided in a subsequent clause, and available to the accused only in the event of the existence of a fact peculiarly within his own knowledge. Howes v. State, 141 Md. 532, 119 A. 297; State v. Jenkins, 124 Md. 376, 92 A. 773; Ruggles v. State, 120 Md. 553, 87 A. 1080; Kiefer v. State, 87 Md. 562, 40 A. 377; Stearns v. State, 81 Md. 341, 32 A. 282.

There were three exceptions to adverse rulings of the court on motions by the appellant to strike out testimony. The first of the motions was made after the prosecuting witness had testified to material facts which the indictment alleged. It...