State v. Haskell Schilansky

• Decision Date: 08 May 1928
• Docket Number: (No. 6117)
• Citation: 105 W.Va. 549
• Court: West Virginia Supreme Court
• Parties: State v. Haskell Schilansky

105 W.Va. 549

State

v.Haskell Schilansky

(No. 6117)

Supreme Court of Appeals of West Virginia.

Submitted April 18, 1928.

Decided May 8, 1928.

1. Indictment and Information Indictment in Statute's Words for Forcible Rape Held Sufficient to Charge CommonLaw Rape (Code, c. 144, § 15).

An indictment framed in the words of the statute, section 15 of chapter 144 of the Code, which alleges that the defendant, at the time and place named, "with force and arms, in and upon one Mattie Lantz, a female child under the age of sixteen years, to-wit, the age of thirteen years, feloniously did make an assault; and her, the said Mattie Lantz then and there, to-wit, on the day and year aforesaid, unlawfully and feloniously did carnally know and abuse," is sufficient to charge the common-law offense of rape. (p. 549.)

(Indictments and Informations, 31 C. J. § 268.)

2. Samei Generally Indictment May Follow Statute. Declaratory of Common Law, or be in Common-law Form.

Where a statute is merely declaratory of the common law in respect to a crime, generally the indictment may follow the words of the statute or be in the common-law form. (p. 551.)

(Indictments and Informations, 31 C. J. § 263.)

3. Rape Indictment for Common-law Rape Need Not Allege Prosecutrix Was Not Accused's Wife, Where Such May Reasonably be Inferred, Although Statute Contains Words "Not His Wife"; in Prosecution for Rape, That Prosecutrix is Not Defendant's Wife is Generally Matter of Defense (Code, c. 14k, § 15).

In an indictment for the common-law offense of rape it is not necessary to allege that the prosecutrix was not the wife of the accused, where it may reasonably be inferred that no marital relation existed, although the statute contains the words "not his wife," that relationship generally being a matter of defense, (p. 551.)

(Rape, 33 Cyc. p. 1440.)

4. Criminal Law Rape Instruction That Jury May Find Defendant Guilty as Charged in Indictment for Rape on Uncorroborated Testimony of Prosecuting Witness, Naming Her, Held Abstract and Incomplete.

An instruction in a rape case which simply tells the jury "that they may find the defendant guilty as charged in the indictment on the uncorroborated testimony of the prosecuting witness alone," (naming her), is too abstract and incomplete in form. (p. 551.)

(Criminal Law, 16 C. J. § 2482; Rape, 33 Cyc. p. 1502.)

5. Same Instruction That Jury May Disbelieve All Witness' Testimony, if They Think He Knowingly Testified Falsely to One Material Fact, Without Instructing to Give Testimony or Any Part Weight to Which Entitled, is Erroneous.

An instruction is erroneous which tells the jury that they are at liberty to disbelieve all the testimony of a witness if they believe he has knowingly testified falsely to one material fact in issue, without also telling them that they may give his testimony or any part thereof such weight as in their opinion it may be entitled to. (p. 552.)

(Criminal Law. 16 C. J. § 2442.)

6. Same Instruction Giving Undue Prominence to Certain Fact, and Ignoring Other Facts Equally Important, Except by General Reference, Should Not be Given.

An instruction to the jury which specifically singles out and gives undue prominence to a certain fact in evidence and ignores other facts equally important and as decisive of the issue involved, except by general reference to "all other facts and circumstances introduced in evidence in the case," is improper and should not be given, (p. 552.)

(Criminal Law, 16 C. J. § 2479.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Error to Circuit Court, Tucker County. Haskell Schilansky was convicted of rape, and lie brings error.

Judgment reversed; verdict set aside; new trial awarded. J. W. Harman, for plaintiff in error.

Howard B. Lee, Attorney General, and W. Elliot Nefflen, Assistant Attorney General, for the State.

Miller, President:

The defendant was tried and found guilty on an indictment charging that he "with force and arms, in. and upon one Mattie Lantz, a female child under the age of sixteen years, to-wit, the age of thirteen years, feloniously did make an assault; and her, the said Mattie Lantz, then and there, to-wit, on the day and year aforesaid, unlawfully and feloniously did carnally know and abuse." There was no demurrer to, or motion to quash the indictment. The defendant assigns error in the action of the trial court in overruling his motion in arrest of judgment, on the ground that the indictment is fatally defective in failing to charge an offense.

The statute upon which the indictment is founded, section 15 of chapter 144 of the Code, is as follows:

'' If any male person carnally know a female, not his wife, against her will by force, or if any male person who is over the age of sixteen years carnally know a female, not his wife, under that age, he shall be punished with death or with confinement in the penitentiary for life, or if the jury add to its verdict a recommendation for mercy, with confinement in the penitentiary for not less than five years nor more than twenty years, provided, always that this section shall not apply to any male person under sixteen years of age who shall carnally know a female over twelve years of age with her free consent."

Counsel for defendant contend that the indictment should have alleged that the defendant was over sixteen years of age and that the prosecuting witness was not his wife. The indictment charges that the act was committed "with force and arms." Where force is charged, it is not necessary to allege the age of the defendant. Carnal knowledge of a female against her will by a male person of any age, who is old enough to perform the act, is rape, by the statute as well as by the common law; and lack of capacity is a matter of defense, which need not be anticipated by pleading. State v. Wright, 91 W. Va. 500; State v. Tippens, Id. 504.

For the proposition that the indictment should have alleged that the prosecuting witness was not the wife of defendant, we are cited to our case of State v. Fudge, 96 W. Va. 109. In that case it was charged that the assault was made by R. R. Fudge, a male person over the age of sixteen years, upon one Myrtle Fudge, a female child under the age of sixteen years, the statutory offense being wholly relied upon. It was there held that the indictment should have been quashed, because not averring that the girl was not the wife of the accused; but the court said: '' The averment need not be made in specific terms, if from the language of the indictment it may reasonably be inferred; but from our examination of the authorities we do not think the language used in the indictment under consideration sufficient for that purpose."

Here the indictment, by the use of "with force and arms", is sufficient to charge the common-law offense of rape, and though our statute, by the reenactment in...