Tincher v. Boles

• Decision Date: 09 August 1966
• Docket Number: No. 9736.,9736.
• Parties: Samuel F. TINCHER, Appellant, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

364 F.2d 497 (1966)

Samuel F. TINCHER, Appellant, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Appellee.

No. 9736.

United States Court of Appeals Fourth Circuit.

Argued May 5, 1965.

Decided August 9, 1966.

James J. Harkins, Wheeling, W. Va. (Court-assigned counsel), for appellant.

George H. Mitchell, Asst. Atty. Gen. of West Virginia (C. Donald Robertson, Atty. Gen. of West Virginia, on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and SOBELOFF and BOREMAN, Circuit Judges.

PER CURIAM:

In this habeas corpus petition, Tincher complained that the indictment upon which he was convicted of statutory rape failed to specify the day, the month, or the year of the offense charged. Concerned about the efficacy of the conviction as a bar to a subsequent prosecution, we appointed counsel for Tincher and have fully considered briefs, supplemental briefs and oral arguments of counsel.

Other information in the indictment supplies some limitations to the unspecificity of the allegation of the time of the offense. The indictment is in the form prescribed by statute, and the spaces for the day, the month and the year were simply left blank.¹ The indictment includes the name of the victim, however, and alleges that, at the time of the offense, she was a 12-year-old child.

Appointed counsel now concedes that, under West Virginia law, an indictment is not defective though it contains no allegation of the time of the offense, unless time is of the essence of it. The concession seems plainly proper.² He also concedes, we think properly, that a conviction may be had upon an indictment, unspecific in its allegation of the time of the offense, if proof is tendered of an offense committed at any time prior to the return of the indictment by the Grand Jury.³ Rationally, this leads the attorney and the Court to the conclusion that any prosecution under a subsequent indictment would be foreclosed if the offense charged was one which would have supported a conviction under the earlier indictment.

One case in West Virginia, of some vintage, suggests there may be a problem if the State seriously contends there were two offenses when one of the successive indictments is unspecific as to the time of the offense.⁴ If that problem is still present under West Virginia law, however, we think the requirements of the Federal Constitution need not be considered before a subsequent indictment has been sought. It is most unlikely that a subsequent indictment on an offense of this sort would be sought even if there were reason to believe that the defendant had carnally known the child more than once. The indictment which clearly is not void under the law of West Virginia need not be treated as void in the federal courts merely on the basis that, in the very unlikely and remote event of a subsequent prosecution, the Federal Constitution may establish a bar if the West Virginia laws do not.⁵

Counsel suggests that time is of the essence here because the statute applies only if the male is over the age of 16 and the female under the age of 16. However, the indictment is quite specific in charging that the victim was under the age of 16 years, actually twelve years old, at the time and only somewhat less specific in...