State v. Horne
Decision Date | 14 April 1891 |
Citation | 20 Or. 485,26 P. 665 |
Parties | STATE v. HORNE. |
Court | Oregon Supreme Court |
Appeal from circuit court, Multnomah county; L.B. STEARNS, Judge.
(Syllabus by the Court.)
All unnecessary words in an indictment may, after judgment, be rejected as surplusage, and, if the indictment is good after striking them out, the conviction must stand.
V.K Strode and Sears & Beach, for appellant.
T.A Stephens, Dist. Atty., and W.T. Hume, for the State.
The defendant was tried, convicted, and sentenced to imprisonment in the penitentiary for the term of 10 years, under an indictment, the charging part of which is as follows "The said Samuel J. Horne, on the 26th day of August A.D.1890, in the county of Multnomah and state of Oregon, did willfully, unlawfully, feloniously, forcibly, and violently make an assault in and upon one Ella Bennett, a female child under the age of fourteen years, by then and there unlawfully, feloniously, forcibly, and violently ravishing and carnally knowing her, the said Ella Bennett, against her will," etc. The contention of appellant is that this indictment charges only the crime of an assault, and that the court erred in sentencing him to imprisonment in the penitentiary. The argument is that the language, "by then and there unlawfully, feloniously, forcibly, and violently ravishing and carnally knowing her, the said Ella Bennett, against her will," is only descriptive of the means by which the assault was committed, and does not charge the crime of rape. No objection was made to the indictment in the court below, but the question is raised here for the first time, and therefore the only question to be considered is, does the indictment sufficiently charge carnal knowledge of the female under the age of fourteen years? By section 1733, Hill's Code, it is provided that, "if any person shall carnally know any female child under the age of fourteen, *** such person shall be deemed guilty of rape, and, upon conviction thereof, shall be punished," etc. By this section a female under the age of 14 years is conclusively presumed to be incapable of consenting to sexual intercourse, and a man who has connection with such a female, although she may have in fact consented, is guilty of rape. As carnal knowledge, with or without force, in such case, is rape, it follows that the allegations of force and want of consent in an indictment are mere surplusage, and need not be proved,...
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State v. Haji
...indictment insufficient. Id . at 493, 185 P.3d 1103 (citing State v. Humphreys , 43 Or. 44, 48, 70 P. 824 (1902), and State v. Horne , 20 Or. 485, 486, 26 P. 665 (1891) ).4 A hypothetical illustrates the problem: If a grand jury finds that a defendant committed multiple crimes during a sing......
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State v. Ofodrinwa
...without her consent. See State v. Lee, 33 Or. 506, 510, 56 P. 415 (1899) (treating those allegations as equivalent); State v. Horne, 20 Or. 485, 486, 26 P. 665 (1891) (holding that allegations regarding forcible compulsion were surplusage because the indictment alleged that the defendant ha......
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State v. Pachmayr
...necessarily descriptive of the offense may be regarded as surplusage and rejected, without vitiating the pleading"); State v. Horne, 20 Or. 485, 486, 26 P. 665 (1891) ("mere surplusage" does not render indictment insufficient). Because the original indictment alleged that defendant used the......
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Callaghan v. State
...of the charge of rape, but only as it is included in the crime of rape. State v. Elswood, 15 Wash. 453, 46 P. 727; State v. Horne, 20 Or. 485, 26 P. 665. information charges statutory rape, and the charge is clearly and distinctly set forth in ordinary and concise language, and in such a ma......