State v. Williams

• Decision Date: 29 January 1890
• Citation: 23 P. 335,9 Mont. 179
• Parties: STATE v. WILLIAMS.
• Court: Montana Supreme Court

23 P. 335

9 Mont. 179

STATE v. WILLIAMS.

Supreme Court of Montana

January 29, 1890

Under Comp. Laws Mont. p. 509, § 46, defining rape as "an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under" certain circumstances it is not necessary to allege that the female was not defendant's wife.

Appeal from district court, Custer county.

W. A Burleigh and Henri J. Haskell, Atty. Gen., for the State.

Jas. H Garlock, for respondent.

DE WITT, J.

The defendant was indicted in the district court of Custer county, May 13, 1889, for the crime of rape. The charging portion of the indictment is as follows: "That E. J Williams, with force and arms, in and upon one Mary Williams, then and there being a female child under the age of fifteen years, to-wit, of the age of thirteen years, feloniously, violently, and unlawfully did make an assault, and her, the said Mary Williams, then and there feloniously did ravish, and carnally know, contrary to the form of the statute," etc. The law of the then territory on which the indictment was found is, as far as relates to the question upon appeal, as follows: "Sec. 46. Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: ( a) Where the female is under the age of fifteen years." Comp. Laws, § 46, p. 509. "Sec. 47. The essential guilt of rape consists in the outrage to the person and feelings of the female." Id. p. 510. On the trial, the defendant objected to the sufficiency of the indictment, on the ground that it did not aver that the female was "not the wife of the perpetrator" of the alleged rape. The objection was by the court sustained, and the defendant discharged. The territory reserved the question of law by exception, which appears in the record, and appealed to this court.

One question only is presented, viz., is it required that the indictment should contain the negative allegation, "not the wife of the perpetrator?" We have to determine whether the negative matter mentioned in the statute is of such character that it may be deemed an exception, and not necessarily to be pleaded, or whether it be an essential element of definition, requiring allegation and proof by the prosecutor. The rules, as laid down by the authorities, are clear; but the application is sometimes attended with difficulty. 1 Bish. Crim. Prac. § 385. The rule is anciently stated as follows: "Where an exception is incorporated in the body of the clause, he who pleads the clause ought also to plead the exception; but, when there is a clause for the benefit of the pleader, and afterwards follows a proviso which is against him, he shall plead the clause, and leave the adversary to show the proviso." Jones v. Axen, 1 Ld. Raym. 119, cited in U.S. v. Cook 17 Wall 177. And, again: "If there be an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; but, if there be an exception in a subsequent clause or subsequent statute, that is matter of defense, and is to be shown by the other party." Com. v. Hart, 11 Cush. 134. See, also, 1 Bish. Crim. Prac. § 378. So many apparent exceptions to the rule have been made, and so many applications of the same that are in conflict with the exact letter, but not the spirit, thereof, that the rule may be well stated as in Territory v. Burns, 6 Mont. 74, 9 P. 432: "When an exception is stated in the statute, it is not necessary to negative such exception, unless it is a constituent part of the definition of the offense. The exception must be a constituent or ingredient of the offense declared by the statute, in order to require that it should be negatived by the indictment." It makes no difference in what part of the statute the exception may appear, --whether in what is commonly called the "enacting clause," or not. The criterion which determines the necessity to negative such...