State v. Wright

• Decision Date: 19 September 1922
• Docket Number: (No. 4484.)
• Citation: 113 S.E. 764
• Court: West Virginia Supreme Court
• Parties: STATE. v. WRIGHT.

113 S.E. 764

STATE.

v.WRIGHT.

(No. 4484.)

Supreme Court of Appeals of West Virginia.

Sept. 19, 1922.

(Syllabus by the Court.)

Error to Circuit Court, Wetzel County.

H. A. Wright was indicted for rape. Indictment quashed, and the State brings error. Reversed and remanded.

E. T. England, Atty. Gen., R, A. Blessing, Asst. Atty. Gen., W. J. Postlethwait Pros. Atty., of New Martinsville, and H. H. Rose, of Fairmont, for the State.

Larrick & Lemon, of New Martinsville, for defendant in error.

MILLER. J. The State is plaintiff in error, and brought the case here to review thejudgment below quashing the indictment and discharging the defendant from further prosecution.

The indictment charges that the defendant,

"on the —— day of——, 1919, in said county of Wetzel, in and upon one Clara Taylor, a female child under the age of fourteen years, to wit, of the age of twelve years, unlawfully and feloniously did make an assault, and her the said Clara Taylor then and there unlawfully and feloniously did carnally know and abuse, against the peace and dignity of the State."

The first proposition urged here in support of the judgment, but not presented to the court below, is that three terms of the court had elapsed after the finding of the indictment without having brought the defendant to trial, and that this fact entitled him to a discharge. Clearly, this point, if well founded in fact, is not properly presented by the demurrer, or its equivalent, the motion to quash; and as the question was not presented to the court below, it is not properly addressed to us, and will not be responded to here.

The second proposition relied on to sustain the judgment is that the indictment charges no offense whatever under the statute, section 15, chapter 144 of the Code (Code 1913, sec. 5166). It provides that:

"If any person carnally know a female of the age of fourteen years or more, against her will by force, or carnally know a female child under that age, he shall be punished with death or by confinement in the penitentiary, " as prescribed: "Provided, always, that this section shall not apply to any person under fourteen years of age who carnally knows a female over twelve years of age with her free consent."

The contention of defendant's counsel, which seems to have been accepted by the court, is that to make a good indictment under this statute, it was essential that it should have averred that the defendant at the time of the alleged offense was over fourteen years of age; for if under that age, according to the proviso of the. statute, he was incapable of committing the offense upon a female child twelve years of age with her consent.

It is conceded as a general proposition that it is unnecessary to negative what comes in by way of proviso, or what is in its nature but a proviso, and not contained in the enacting clause of the statute. State v. Richards, 32 W. Va. 348, 356, 9 S. E. 245, 3 L R. A. 705; State v. Kirkpatrick, 88 W. Va. 381, 106 S. E. 887. These decisions but follow the general rule of criminal pleading prevailing everywhere, that the indictment need negative exceptions only, not provisos, such matters being defensive and not necessary to be negatived in the indictment.

It is affirmed, however, that one of the constituent elements of the offense forbidden by the statute, is that the offender should have been over the age of fourteen years, unless without the consent of the female, if under that age, citing for the proposition the recent case of State v. Cunningham (W. Va.) 111 S. E 835. That case involved a proviso in the so-called worthless check statute. We did hold that the issuance of a check on a bank, without funds in the bank to meet it, as alleged, did not constitute a complete offense, without proof of presentment and notice of protest, and nonpayment by the drawer within twenty days thereafter, and that this proviso necessarily operated to restrain the terms of the penal clause and went beyond the mere function of an exception in the ordinary sense of the term, and that it was necessary to consider both clauses in describing and averring the offense. We have no such element in the...