Foxwell v. State

TURNER, J., delivered the opinion of the Court. The indictment in this ease, by the first of its two counts, charged that the appellant, on July 22, 1923, in and upon a ⁹² designated female, not Ms wife, between the ages of fourteen and sixteen years, did make .an assault, and then and there did unlawfully and carnally know her, contrary to tire form of the Act of Assembly in such case made' and provided and against the peace, government and dignity of the State. Upon this charge the appellant was tried and convicted, a demurrer to the indictment having been sustained .as to the second count, which attempted to allege an assault with intent to ravish. The demurrer to the indictment raised the first questions to be considered on this appeal.

The count on which t-he appellant was tried is said to be demurrable on the ground of duplicity, because it accused him of having .assaulted, and also of having carnally known, a girl who- was between the ages of fourteen and sixteen years. This objection was properly overruled. It was evidently not intended by the first count of the indictment to charge two distinct offenses. The use of thei phrase “did make an assault” was probably suggested by its employment in the common form of indictment for rape. 3 Bishop’s Crim.

Proc. (2nd ed.), sec. 949. While force is not an essential element of snch a crime as the one of which the appellant was accused and convicted, the legal incapacity of the prosecuting witness to consent to the act suggests a. legal implication of assault in its commission. But whether or not the .allegation of an assault was appropriate, it was certainly unnecessary, and may be rejected as surplusage.

State v. Erickson, 45 Wis. 86 ; Bishop on Statutory Crimes, sec. 486; 4 R. C. L. 191; 31 C. J. 747. The specific charge against the appellant was that of having carnal knowledge of a female, not his wife, who was between the ages of fourteen and sixteen years, contrary to section 422 of article 27 of the Code, and the indictment sufficiently made that accusation. The Code1 section just cited concludes with a proviso that, it shall not apply to male persons under the age of eighteen years. It was argued that the indictment should have alleged the appellant’s age to have been beyond the limit which the ⁹³ proviso specified.

This was not a necessary averment. The restriction by the proviso1 as to the application oí the statute, according to the age of the accused, afforded a possible groun i of defense which the indictment was not required to anticipate and negative. The provision was not incorporated in the description of the offense with which the statute was concerned. It was an exemption provided in a subsequent clause and available to the accused only in the event of the existence of a fact peculiarly within his own knowledge.

Howes v. State, 141