Weaver v. Sacks
| Decision Date | 20 June 1962 |
| Docket Number | No. 37067,37067 |
| Citation | 183 N.E.2d 373,173 Ohio St. 415 |
| Parties | , 20 O.O.2d 43 WEAVER v. SACKS, Warden. |
| Court | Ohio Supreme Court |
James Weaver, in pro. per.
Mark McElroy, Atty. Gen., and John J. Connors, Jr., Columbus, for respondent.
The primary contention made by the petitioner is that his indictment was invalid. The pertinent part of such indictment read as follows:
'That James Weaver late of said county, on or about the 15th day of June in the year of our Lord, on thousand nine hundred and fifty-two at the county of Mahoning aforesaid, unlawfully and forcibly raped or ravished * * * she * * * then and there being his daughter, contrary to the statute in such cases made and provided and against the peace and dignity of the state of Ohio.'
Section 12413, General Code, under which petitioner was indicted, read as follows:
'Whoever has carnal knowledge of his daughter, sister, or a female person under twelve years of age, forcibly and against her will, shall be imprisoned in the penitentiary during life; and whoever had carnal knowledge of any other female person forcibly and against her will shall be imprisoned in the penitentiary not less than three years nor more than twenty years.'
It is the contention of the petitioner that the omission of the words, 'against her will,' constituted an omission of one of the essential elements of the crime and thereby invalidated the indictment.
The indictment was drawn according to the prescribed statutory form for such offense set forth in Section 13437-6, General Code (Section 2941.07, Revised Code).
The question which we must determine is whether such statutory form sets forth the essential elements of the crime defined by Section 12413, General Code (Section 2905.02, Revised Code). The essential elements of the crime of aggravated rape, under Section 2905.02, Revised Code, as set forth in the opinion of Judge Taft in State v. Daniels, 169 Ohio St. 87, 103, 157 N.E.2d 736, 747, 76 A.L.R.2d 468, are '(1) carnal knowledge (2) against the will of, i. e., without the consent of, (3) either (I) a daughter (II) a sister or (III) a female under 12.'
The indictment in the present instance did not include the words, 'against here will,' as used in the statute. Although it is true that an indictment must set forth the essential elements of the crime charged, it is not necessary that an indictment be in the words of the statute. Section 13437-4, General Code (now Section 2941.05, Revised Code), read as follows:
The indictment in the present instance read as follows:
'James Weaver * * * unlawfully and forcibly raped or ravished * * * she * * * then and there being his daughter.'
Rape is defined in Black's Law Dictionary as 'the unlawful carnal knowledge of a woman by a man forcibly and against her will.' This, of course, is the basic definition of rape and the one which would be commonly known to the layman. It has been held that an averment that an accused forcibly raped and ravished a woman connotes that it was against her will. Harman v. Commonwealth, 12 Serg. & R. 69; Rookey v. State, 70 Conn. 104, 111, 38 A. 911.
When the words used in this indictment are considered in their common and ordinary usage, with the meaning placed thereon by the ordinary layman as well as the lawyer, it is clear that the indictment charged the offense set forth in Section 12413, General Code (Section 2905.02, Revised Code). The omission of the words, 'against her will,' in no way invalidated such indictment. The purpose of the indictment was completely fulfilled. It informed the petitioner of the crime with which he was charged. Under this indictment there should have been no doubt in his mind as to the charges against him; if there had been such doubt, he was entitled to a bill of particulars under Section 13437-6, General Code (Section 2941.07, Revised Code).
The petitioner was represented by counsel, and the indictment was drawn in the prescribed statutory form (Section 13437-6, General Code). Under such circumstances, an accused cannot sit back and invite error. As was said in the opinion in City of Cincinnati v. Schill, 125 Ohio St. 57, 60, 180 N.E. 545, 546, 'but if an accused person feels that the charge filed against him is vague, indefinite, and uncertain,...
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State Of Ohio v. Parker
...Id. at ¶111, quoting State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162, ¶7, citing Weaver v. Sacks (1962), 173 Ohio St. 415, 417, 183 N.E.2d 373, and State v. Sellards (1985), 17 Ohio St.3d 169, 170, 478 N.E.2d 781. {¶ 18} Here, the indictment tracks the language of the ......
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State v. Lambert
...for the same incident." State v. Buehner , 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162, ¶ 7, citing Weaver v. Sacks , 173 Ohio St. 415, 417, 183 N.E.2d 373 (1962), and State v. Sellards , 17 Ohio St.3d 169, 170, 17 OBR 410, 478 N.E.2d 781 (1985) ; accord State v. Horner , 126 Ohio S......
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State v. Salti
...prosecutions for the same incident. State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162, citing Weaver v. Sacks, 173 Ohio St. 415, 417, 183 N.E.2d 373 (1962), and State v. Sellards, 17 Ohio St.3d 169, 170, 478 N.E.2d 781 (1985). An indictment that tracks the language of th......
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The State of Ohio v. HORNER
...for the same incident.” State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162, ¶ 7, citing Weaver v. Sacks (1962), 173 Ohio St. 415, 417, 20 O.O.2d 43, 183 N.E.2d 373, and State v. Sellards (1985), 17 Ohio St.3d 169, 170, 17 OBR 410, 478 N.E.2d 781. In Buehner, we held that ......