State v. Tippens

Decision Date19 September 1922
Docket Number4485.
Citation113 S.E. 751,91 W.Va. 504
CourtWest Virginia Supreme Court

Submitted September 12, 1922.

Syllabus by the Court.

An indictment charging the defendant with having assaulted beaten, and ill-treated a certain female, with intent then and there violently against her will feloniously to ravish and carnally know her, need not allege the age of the accused.

Amendment and re-enactment of a statute creating or defining a crime does not repeal, discontinue, nor interrupt the force effect, or operation of such statute, in so far as it remains unaltered by the amendment.

Nor does an alteration so made condone, forgive or abrogate an offense committed before the alteration was effected.

Error to Circuit Court, Wetzel County.

Waldo Tippens and another were indicted for an attempt to commit the crime of rape. Indictment quashed, and the State brings error. Reversed and remanded.

E. T England, Atty. Gen., R. A. Blessing, Asst. Atty. Gen., and W J. Postlethwait, of New Martensville, for the State.


Under the provisions of section 31 of chapter 135 of the Code, (Code Supp. 1918, sec. 5010a), The state of West Virginia obtained this writ of error to a judgment of the circuit court of Wetzel county, quashing an indictment charging the defendants, Tippens and Medley, with an attempt to commit the crime of rape.

As nothing in the record discloses the ground of the motion to quash, nor the supposed defect or infirmity upon which the judgment rests, and no brief has been filed by the defendants in error, only the brief filed on behalf of the state discloses the ground or grounds of the ruling complained of. By it we are informed the court sustained the motion upon one or both of these disclosures: (1) Failure of the indictment to allege the age of the accused; and (2) alteration of the statute relating to the crime of rape, after the date of the alleged offense and the date of the indictment.

In the absence of an exception to the general rule of pleading, based upon some peculiar statutory provision, an averment of the age of the accused, in an indictment for rape or an attempt to commit the offense, is not required. A charge of commission of the crime, or an attempt to commit it, impliedly charges the capacity to do so, lack of such capacity being matter of defense, which need not be anticipated b y pleading. Such is the uniform holding in all jurisdictions. People v. Ah Yek, 29 Cal. 575; People v. Wessel, 98 Cal. 352, 33 P. 216; Sutton v. People, 145 Ill. 279, 34 N.E. 420; Com. v. Scannel, 11 Cush. (Mass.) 548; State v. Ward, 35 Minn. 183, 28 N.W. 192; Greenlee v. State, 4 Tex. App. 346; State v. Sullivan, 68 Vt. 543, 35 A. 479; 17 Ency. Pl. & Pr. 650; 22 R. C. L. p. 1199; Whar. Cr. Proc. § 1142.

At the date of the indictment, our statute contained nothing exceptional or peculiar, save a proviso rendering it inapplicable to persons under 14 years of age, who carnally knew females over 12 years of age with their free consent. This proviso affords mere ground of defense. It is no part of the description of the offense. In pleading, it does not call for the treatment accorded an exception found in the words of enactment. State v. Richards, 32 W.Va. 348, 9 S.E. 245, 3 L. R. A. 705; State v. Kirkpatrick, 88 W.Va. 381, 106 S.E. 887; Hill's Case, 5 Grat. 682.

Substantial alterations were made in the statute by the amendments effected by chapter 90, Acts of 1921, which became operative about two months after...

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