State ex rel. Cain v. Skeen

• Decision Date: 10 February 1953
• Docket Number: No. 10526,10526
• Citation: 74 S.E.2d 413,137 W.Va. 806
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. CAIN, v. SKEEN, Warden.

Page 413

74 S.E.2d 413

137 W.Va. 806

STATE ex rel. CAIN, v. SKEEN, Warden.

No. 10526.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 14, 1953.

Decided Feb. 10, 1953.

Syllabus by the Court.

1. "An indictment for statutory rape as defined by Code, 61-2-15, which fails to allege that the prosecutrix was of previous chaste character and that the accused is over sixteen years of age, is defective, notwithstanding the same was drawn in conformity with the form set forth in Code, 62-9-7." State v. Ray, 122 W.Va. 39, pt. 2 syl., 7 S.E.2d 654.

2. The fact that the accused is a male person over the age of sixteen years is an essential element of the crime of statutory rape and must be alleged in an indictment therefor.

3. An indictment which does not allege every material element of the offense sought to be charged is defective and void notwithstanding its conformance with a form prescribed by legislative enactment and stated therein to be sufficient.

4. A statutory form of indictment to be valid must be in full compliance with Section 14, Article III of the Constitution of this State requiring that an accused be fully and plainly informed of the character and cause of the charge against him, and a form of indictment which does not contain all of the material elements of an offense does not meet such requirement.

Richard F. Pence, Parkersburg, for relator.

John G. Fox, Atty.Gen., and T.D. Kauffelt, Asst.Atty.Gen., for respondent.

BROWNING, Judge.

The relator, Denver Hershel Cain, a prisoner in the State Penitentiary at Moundsville, invoked the original jurisdiction of this Court by filing with it, on November 11, 1952, his petition for a writ of habeas corpus ad subjiciendum to be directed to Orel J. Skeen, warden of this penal institution. A writ was issued by this Court, on November 17, 1952, commanding the respondent to produce the body of 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 14, 1952, at which time the respondent produced the relator and filed a demurrer to the petition upon the ground that it is insufficient in law for the reason that an indictment for statutory rape need not allege the age of the accused.

The offense for which the relator is serving a sentence in the State Penitentiary is statutory, Code, 61-2-15, reading as follows: "If any male person carnally know a female person, not his wife, against her will by force, or if any male person over the age of sixteen years carnally know a female person of previous chaste character, not his wife, under that age, he shall be guilty of a felony, and, upon conviction, shall be punished with death or with confinement in the penitentiary for life, in the discretion of the court, or, if the jury add to its verdict a recommendation for mercy, with confinement in the penitentiary for not less than five nor more than twenty years: Provided, that this section shall not apply to any male person under sixteen years of age who carnally knows a female over twelve years of age with her free consent. ***"

The Legislature of this State, subsequent to the enactment of the provision last quoted, undertook to set out a form of indictment for certain criminal offenses, and the following is the form provided by Code, 62-9-7, for the offense of statutory rape:

"*** And if the female be a child under the age of sixteen years, the indictment shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one [ § 6263]):

"That A......, on the ...... day of ......, nineteen ......, in the said county of ......, in and upon one B......, a female child, not his wife, under the age of sixteen years, did feloniously make an assault, and her, the said B......, then and there did feloniously and carnally know, against the peace and dignity of the State."

The indictment returned by the grand jurors of Wirt County follows the statutory form, but the indictment and the statutory form vary from Code, 61-2-15, in that neither contains the phrase a "male person over the age of sixteen years" in referring to the defendant, the relator here. The relator contends that the indictment to which he pleaded guilty was void by virtue of the fact that it did not allege that he was a male person over the age of sixteen years, and being void, that he is illegally restrained, and entitled to the extraordinary relief which he seeks in this Court.

It is well established in this jurisdiction that a prisoner cannot waive the defects in a void indictment, and a determination that the indictment in question in this case was void entitles the relator to the relief he seeks. In State v. Ray, 122 W.Va. 39, 7 S.E.2d 654, pt. 2 syl., reads as follows: "An indictment for statutory rape as defined by Code, 61-2-15, which fails to allege that the prosecutrix was of previous chaste character and that the accused is over sixteen years of age, is defective, notwithstanding the same was drawn in conformity with the form set forth in Code, 62-9-7." The indictment in that case was attacked by demurrer, and the Court held that the demurrer should have been sustained because the indictment failed to charge that the prosecutrix was "of previous chaste character", and that the defendant was "a person over sixteen years of age." The majority of this Court held the indictment invalid upon both grounds, with Judge Kenna dissenting in part, and upon the exact question presented in this case.

The attorney general does not urge a differentiation of these cases upon the ground that one of the indictments was promptly and seasonably attacked by demurrer, and in the instant case that the defendant pleaded guilty to the indictment, and a year and a half thereafter seeks his freedom upon the ground that the indictment to which he pleaded guilty was void. However, counsel does strongly urge that State v. Ray, supra, be specifically overruled in so far as it holds that an allegation that the defendant is a male person over the age of sixteen years is essential to the validity of the indictment.

The fact that the Legislature of this State has adopted a form of indictment does not make such valid if it fails to incorporate therein all of the elements of the offense as defined by statute. Scott v. Harshbarger, 116 W.Va. 300, 180 S.E. 187; State v. McGinnis, 116 W.Va. 473, 181 S.E. 820.

Section 4 of Article III of the Constitution of West Virginia provides that: "*** No person shall be held to answer for treason, felony or other crime, not cognizable by a justice, unless on presentment or indictment of a grand jury. ***" Section 14 of the same Article, referring to trials for crimes and misdemeanors, contains the following: "*** In all such trials, the accused shall be fully and plainly informed of the character and cause of the accusation, and be confronted with the witnesses against him, ***." A statutory form of indictment to be valid must be in full compliance with the provisions of the last quoted section of the Constitution.

An examination of the reported cases in other jurisdictions indicates that State v. Ray, supra, represents the minority view upon this question.

In People v. Ah Yek, 29 Cal. 575, the court said: "*** After providing for the punishment, it adds: 'Any person of the age of fourteen years and upward, who shall have carnal knowledge of any female child under the age of ten years, either with or without her consent, shall be adjudged guilty of the crime of rape,' etc. The indictment would have been good without averring the age of the child. *** The fact that it is averred does not change the rule, and make it necessary to aver the age of the party who commits the offense. ***"

The California court, in People v. Wessel, 98 Cal. 352, 353, 33 P. 216, in following the same rule laid down in the Ah Yek case, stated as follows: "The first point made is that the court erred in overruling defendant's demurrer to the information on the ground that it did...