State v. Williamson

• Decision Date: 10 July 1900
• Citation: 62 P. 1022,22 Utah 248
• Court: Utah Supreme Court
• Parties: THE STATE OF UTAH, RESPONDENT v. JOHN H. WILLIAMSON, APPELLANT. [1]

62 P. 1022

22 Utah 248

THE STATE OF UTAH, RESPONDENT v. JOHN H. WILLIAMSON, APPELLANT. ^[1]

Supreme Court of Utah

July 10, 1900

Appeal from the Fifth District Court Beaver County. Hon. E. V Higgins, Judge.

Defendant was charged by the information with the statutory crime defined by Section 4221 R. S. 1898. From a verdict of guilty and the judgment and sentence entered thereon defendant appealed.

Affirmed.

W. F Knox, Esq., for appellant.

Hon. A C. Bishop, Atty. Gen'l, for the State.

MINER, J. BARTCH, C. J., concurs. BASKIN, J., dissents.

OPINION (Opinion on rehearing.)

MINER, J.

The defendant was charged by information with the crime defined by Sec. 4221 R. S. 1898, which is as follows:

"Any person who shall carnally and unlawfully know any female over the age of thirteen years and under the age of eighteen years, shall be guilty of a felony."

The terms in which the crime is alleged in the information are as follows: "That John H. Williamson, in and upon one Belle Anderson, a female under the age of eighteen years, and over the age of thirteen years, to-wit, the age of fifteen years, feloniously did make an assault, and her the said Belle Anderson, then and there did carnally and unlawfully know, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Utah."

A demurrer was filed to the information, and one of the grounds stated is that the information "does not state facts sufficient to constitute a crime." The demurrer was overruled by the trial court, and this is assigned as error.

One of the reasons urged by counsel for the defendant why the information fails to charge a crime against the defendant is that it fails to state that the said Belle Anderson was not at the time of the alleged intercourse the wife of the defendant.

Sec. 4221 makes it a felony for any person to carnally and unlawfully know any female over the age of thirteen years and under the age of eighteen years.

Sec. 4730 provides that the information shall contain a statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.

Sec. 4732 requires the information to be direct and certain as regards the party charged, the offense charged, and the particular circumstances of the offense when they are necessary to constitute a complete offense.

The word "male" does not appear in the statute, yet it is well known that no one but a male person could be indicted for the specific offense of rape, and the court would construe the statute to mean that a male person, only, could consummate the offense named therein. The information in such a case need not specify the sex of the defendant. U. S. v. Cannon, 4 Utah 122, 7 P. 369.

In a prosecution for rape it is not necessary under our statute to show in the information that the person ravished was not the wife of the defendant. The statute contains no provision or exception requiring it. Commonwealth v. Fogarty, 8 Gray 489; State v. White, 25 P. 33; State v. Halbert, 44 P. 538; State v. Williams, 23 P. 335.

In the former case it was held that in a case of rape it was not necessary to allege in the information that the prosecutrix was not the wife of the defendant.

Such an averment has never been required to be inserted in an indictment for rape, either in this country or in England. The party indicted, however, may show in his defense that the alleged act was committed with his wife.

It will be seen that our statute, with reference to this offense, contains no exception in the enacting clause. In such cases says Bishop, "Where a statute defines the offense which it creates, it is ordinarily adequate, while nothing less will in any instance suffice, to charge the defendant with all the acts within the statutory definition, substantially in the words of the statute, without further expansion." 1 Bish. Crim. Proc. Sec. 611.

The indictment should, in all cases, employ so many of the substantial words of the statute as will enable the court to see on what statute it is founded, and all other words which are essential to a complete description of the offense, or such words which are equivalent, or more than equivalent to those used in the statute, provided they include the full signification of the statutory words, but not otherwise.

In U. S. v. Cook, 17 Wall. 168, 21 L.Ed. 538, it is said: "Where a statute defining an offense contains an exception, in the enacting clause of the statute, which is so incorporated with the language defining the offense, that the ingredients of the offense cannot be accurately and clearly described if the exception is omitted, an indictment founded upon the statute must allege enough to show that the accused is not within the exception. But if the language of the section defining the offense is so entirely separable from the exception, that the ingredients constituting the offense may be accurately and clearly defined without any reference to the exception, the indictment may omit any such reference. The matter contained in the exception is matter of defense, and to be shown by the accused."

It is also held that no allegation of unlawfulness, nor being against the statute, nor in collusion, will make good the indictment, if it does not bring the acts prohibited or commanded, in the doing or not doing of which, the offense consists, within the material words of the statute.

So if the statute prohibits the doing of a particular act without the authority of either one or two things, the indictment should negative the existence of both those before it can be sufficient. If the exception is stated in the enacting clause of the statute it is ordinarily necessary to negative it in order that the description of the crime may correspond with the statute, as, if a statute imposes a penalty for the sale of spirituous liquors without a license, the indictment should aver the want of a license. Archibald's Crim. Law, Sec. 379; State v. McDonald, 14 Utah 173, 46 P. 872.

In the case of the People v. Fairbanks, 7 Utah 3, 24 P. 538, the territorial court held, that under Sec. 4488, C. L. U. 1888, providing that every person who with intent to do bodily harm, and without just cause or excuse, etc., commits an assault, etc., the indictment must negative the clause "just cause or excuse." In the syllabi, and at the foot of the opinion in the case of State v. McDonald, supra, the reporter erroneously states that the former case was overruled. This is incorrect. The case was not overruled by the latter decision. The statutes under which each of these two cases were brought were not at all identical. The case of the State v. McDonald was brought under Section 4471, C. L. U. 1888, providing "that every person who assaults another with intent to murder, is punishable," etc. The indictment charged the defendant with the crime of assault with intent to commit murder, describing the offense, without alleging that the assault was committed without "just cause or excuse," or that it was committed with malice aforethought, and the court held the information good. The charge was in the substantial language of the statute creating the defense. The court held that "murder means the killing with malice aforethought," and that killing "with malice aforethought means murder; that the definition of murder excludes the idea of any just cause or excuse for the killing, or any provocation, however great, to justify it."

In the case of People v. Colton, 2 Utah 457, the statute provided that if...