State v. Pennington

• Decision Date: 24 January 1896
• Citation: 41 W.Va. 599,23 S.E. 918
• Parties: STATE v. PENNINGTON.
• Court: West Virginia Supreme Court

23 S.E. 918

41 W.Va. 599

STATE

v.PENNINGTON.

Supreme Court of Appeals of West Virginia.

Jan. 24, 1896.

Incest—Indictment—Sufficiency—Time of Offense.

1. An indictment for incest, under section 22, c. 149, Code 1891, is not bad because it does not state that the man charged knew the relationship of the woman to him.

2. Such indictment, charging the woman named to be the daughter of defendant's brother, is not bad because it does not give the name of that brother.

3. An imperfect statement of the date of offense in the indictment is cured by section 10, c. 158, Code 1891. Therefore, a statement that the offense was "on the 13th day of August, July, 1894, " is cured by that statute.

4. Mode of stating time of offense in indictments.

5. It is generally both sufficient and necessary, in drafting indictments for statutory offenses, to follow the language of the statute.

(Syllabus by the Court.)

Error to criminal court, Mercer county. Jack Pennington was convicted of incest, and brings error. Affirmed.

Johnston & Hale and A. M. Suttcn. for plaintiff in error.

T. S. Riley, Atty. Gen., for the State.

BRANNON, J. Jack Pennington was sentenced in the criminal court of Mercer county to the penitentiary on the charge of incest, and, being refused a writ of error by the circuit court of Mercer, brings the case to this court.

The writ of error is based solely on alleged insufficiency of the indictment. It is said the indictment is bad in not alleging that Pennington knew that Arenia Pennington was his niece. The statute (section 22, c. 149, Code 1891) does not make this an element in the definition of the offense, and the indictment follows the statute. It is contended that this is a case where the statute ought to be construed to contemplate, as an essential element of the offense, though not mentioned, a knowledge on the part of the man of the woman's relationship, as, if he be ignorant of it, he cannot be guilty; and, as it must be shown, It ought to be alleged as a material averment. This view seems to me strong, but it seems settled that, generally, it is sufficient to use the language of the act defining a statutory offense, and such this is; and that, with particular relation to this offense, it is settled that, unless the statute make such knowledge a part of the definition of the offense, as in Williams v. State, 2 Cart. (Ind.) 439, the indictment need not allege it. Mr. Wharton and Mr. Bishop both so state the law. Whart. Cr. Law, § 1752. Bish. St. Crimes. § 733. It has been pointedly so held in State v. Bullinger, 54 Mo. 142; Simon v. State, 31 Tex. Cr. R. 187, 30 S. W. 399, 716; State v. Wyman, 59 Vt. 527, S Atl. 900, and 59 Am. Rep. 753, note 755. See 10 Am. & Eng. Enc. Law, 339, note 1. In State v. Dana, 59 Vt. 623, 10 Atl. 727, it was again so held, and the court said it was not necessary "to allege and prove affirmatively that respondent knew the relationship existing between him and the particeps. Respondent's knowledge of the relationship is not made an essential of the crime. We have another statute which makes it a crime to carnally know a female child under the age of 11 years with or without her consent. Would it be necessary to allege, and prove affirmatively, that the accused knew she was under the age of 11 years, —a fact extremely difficult, and In most cases impossible, to prove? We think not. A more reasonable and practicable rule is that, If a person willfully does an unlawful and criminal act, he takes upon himself all the legal and penal consequences of such act, regardless of his knowledge, unless knowledge is made an essential ingredient of the crime." I must be allowed to doubt so much of that opinion as holds that knowledge of relationship by the accused is not necessary. 10 Am. & Eng. Enc. Law, 338. It is generally...