State v. Daniels

• Citation: 76 A.L.R.2d 468,169 Ohio St. 87,157 N.E.2d 736
• Decision Date: 08 April 1959
• Docket Number: No. 35607,35607
• Parties: , 76 A.L.R.2d 468, 8 O.O.2d 56 STATE of Ohio, Appellee, v. DANIELS, Appellant.
• Court: United States State Supreme Court of Ohio

Page 87

169 Ohio St. 87

157 N.E.2d 736, 76 A.L.R.2d 468, 8 O.O.2d 56

STATE of Ohio, Appellee, v. DANIELS, Appellant.

No. 35607.

Supreme Court of Ohio.

April 8, 1959.

Syllabus by the Court.

1. Consent of the victim is not an essential element of the crime of statutory rape specified in Section 2905.03, Revised Code (carnal knowledge by one 18 or over of 'a female * * * under * * * 16 * * * with her consent').

2. Where carnal knowledge of a female is with her consent, it cannot be regarded as being 'against her will' within the meaning of those words as set forth in Sections 2905.01 and 2905.02, Revised Code, relating to rape. In order to be 'against her will' within the meaning of those statutes, such carnal knowledge must be without her consent.

3. In order to establish that a father's carnal knowledge of his 10 year old daughter constitutes the crime of aggravated rape specified in Section 2905.02, Revised Code, it is essential to prove that the carnal knowledge of the victim was 'against her will,' i. e., without her consent, even where the father was 18 or over. Paragraph four of the syllabus of Radke v. State, 107 Ohio St. 399, 140 N.E. 586, and Snyder v. State, 92 Ohio St. 167, 110 N.E. 644, limited.

4. In order for one crime to be 'a lesser crime included' in another crime within the meaning of Section 2945.79, Revised Code, the essential elements of the including crime must include all the essential elements of the included crime.

5. An essential element of the crime of incest, as specified in Section 2905.07, Revised Code, is that the defendant has knowledge that his relationship to the one with whom he has sexual intercourse is a relationship nearer than that of a cousin.

6. In order to convict a defendant under Section 2905.02, Revised Code, of having carnal knowledge of his daughter against her will, it is not essential to aver in the indictment or to prove that defendant knew that the victim was his daughter.

7. In an instance where an indictment for the crime of rape of a daughter, that is specified in Section 2905.02, Revised Code, does not contain an averment that the victim was known by the defendant to be his daughter, the crime of incest, that is specified in Section 2905.07, Revised Code, will not, within the meaning of Section 2945.79, Revised Code, be either 'a lesser degree' of or 'a lesser crime included' in such crime of rape.

8. The crime of statutory rape specified in Section 2905.03, Revised Code (carnal knowledge by a person 18 or over of female under 16), is a lesser degree of the crime of rape specified in Section 2905.02, Revised Code (carnal knowledge of a daughter, sister or female under 12 forcibly and against her will).

9. Where the facts stated in an indictment indicate with reasonable certainty that the age of the defendant at the time of the offense was 18 or over, the facts so stated may represent statements equivalent to a statement that defendant was 18 or over and may sufficiently state that essential element of the crime of statutory rape described in Section 2905.03, Revised Code.

10. A court will take judicial notice that it is reasonably certain that an eight-year-old cannot be a father.

11. Where the proper averments of an indictment for the aggravated degree of rape specified in Section 2905.02, Revised Code (of a daughter or female under 12), set forth or indicate with reasonable certainty all the essential elements of the crime of statutory rape described in Section 2905.03, Revised Code, such indictment will support a conviction for the latter crime. (Sections 2945.74 and 2945.79, Revised Code, applied; State v. Corwin, 106 Ohio St. 638, 140 N.E. 369, distinguished.)

12. Where the proper averments of an indictment indicate with reasonable certainty and the undisputed evidence establishes that the defendant was 18 or over, and such defendant is convicted of the crime of aggravated rape specified in Section 2905.02, Revised Code, and there is sufficient evidence to prove all the essential elements of that crime, except that there is no evidence to prove beyond a reasonable doubt that defendant's carnal knowledge of the victim was 'against her will,' i. e., without her consent, a court may, without ordering a new trial or discharging the defendant, modify such verdict to one of guilty of the lesser degree of rape (i. e., statutory rape) specified in Section 2905.03, Revised Code. (Section 2945.79, Revised Code, applied.)

13. Where a single offense may be committed in any one of two or more ways, an indictment is not duplicitous which charges in one count the commission of the offense conjunctively in two of those ways, provided there is no repugnancy between the ways charged.

14. In an indictment for the crime of aggravated rape specified in Section 2905.02, Revised Code, there is no repugnancy between an averment that the victim was a daughter of defendant and an averment that she was ten, and neither of such averments represents surplusage in such an indictment.

This cause originated with an indictment reading, so far as pertinent:

'On or about the fourteenth day of October * * * [1956] * * * [defendant (who is named)] unlawfully and forcibly raped and ravished and did have carnal knowledge of * * * [a named person] she * * * being a female person, the daughter of * * * [the named defendant], and being * * * under * * * 12 * * * to wit: of the age of ten years.'

Defendant's daughter was in the fourth grade. On October 15, 1956, she was questioned by her teacher about going to the toilet too frequently and made statements to her teacher tending to indicate that her father may have had sexual relations with her. She was taken to a hospital and examined by two doctors who found no evidence to indicate that she had had sexual relations and no evidence of any injury to her sex organs, either external or internal, and who found that she had a congenital obstruction which would have precluded any but a very slight penetration. On the same day, defendant was arrested and signed a confession, reading so far as pertinent:

'* * * I * * * make the following statement to Patrolman * * * Augg of the Lancaster Police Dept. and Mr. * * * Rutherford, Fairfield Co. juvenile officer.

'I make this statement of my own free will. No promise of favor has been made me to make this statement and I am under no duress.

'For apx the last month my wife and I have been having family trouble * * *.

'About the affair you asked me about that happened yesterday.

'My wife went to work apx noon yesterday October 14, 1956. And I was home tending the children. At apx 3:00 p. m. I was laying down on the bed. And my ten-year-old daughter * * * [named] came into the house, and into the bedroom. She got on the bed and threw her arms around me. She then lay on top of me, and didn't have any pants on under her dress. I was about half worked up then and I started playing around with her. I put my penis between her legs and just put the head of it into her privates. I didn't but just put it into it. I didn't have a discharge then ¹ and after a while I told her to go out and play. And she left the house. I then went to sleep. The kids then called me apx 5:00 p. m.

'I have had the two pages of this statement read to me and it is all true to the best of my knowledge. I have read the statement and signed each page.'

Although defendant denied being able to read, denied the facts set forth in the foregoing confession and denied having made the statements therein as to what took place on October 14, 1956, he admitted signing that confession, and Augg and Rutherford, who had signed as the witnesses to it, both testified positively that it represented an accurate record of what defendant voluntarily stated, that it was read to him and that he voluntarily signed it.

Although very indefinite as to dates and occurrences, the testimony of defendant's daughter would justify a reasonable inference that, at some time or times prior to October 14, 1956, and within as much as ten weeks prior thereto, defendant had conducted himself on one or perhaps more than one occasion with his daughter in a manner similar to that indicated by the foregoing quotations from his written statement.

The jury by its verdict found defendant guilty as charged, his motion for new trial was overruled, and he was sentenced to life imprisonment in the penitentiary.

On appeal to the Court of Appeals, the judgment of conviction was affirmed by a divided court.

The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of defendant's motion for leave to appeal.

Judson C. Kistler, Lancaster, and H. Wilfred Keller, Baltimore, for appellant.

E. Raymond Morehart, Pros. Atty., Lancaster, for appellee.

TAFT, Judge.

The Court of Appeals refused to sustain defendant's contention in that court that the trial court erred in determining when it overruled defendant's motion for a directed verdict at the close of all the evidence, that there was sufficient evidence to support a verdict finding defendant guilty of the crime specified in Section 2905.02, Revised Code, herein referred to as 'aggravated rape,' which reads in part:

'No person shall have carnal knowledge of his daughter, sister, or a female person under twelve years of age, forcibly and against her will. Whoever violates this section shall be imprisoned for life.'

Defendant contends that, as a matter of law, there is not sufficient evidence to establish beyond a reasonable doubt that defendant had carnal knowledge of his daughter 'forcibly and against her will' within the meaning of those words as used in that statute.

In the majority opinion of the Court of Appeals, it is stated that 'if force [and 'against her will'?] is a necessary element in this case, and if it is not presumed by reason of the age of the girl, ten years, and the relationship, then there is not sufficient evidence in the case to convict the...