Olendorf v. State 64 Ohio St. 118

Olendorf v. The State of Ohio.

Requirement in indictments of words “against the peace and dignity of the state of Ohio.”

The constitution requires that all indictments shall conclude with the words “against the peace and dignity of the state of Ohio,” but those words are not required to be at the conclusion of each count of an indictment.

(Decided January 22, 1901.)

Error to the Circuit Court of Franklin county. .

The plaintiff in error was. indicted in Franklin county for the crime of rape upon a girl of nine years. The indictment was in three counts, the first charging rape with her consent, the second rape against her will, and the third assault with intent to rape. The defendant made a motion to quash, and that being overruled, he filed a general demurrer, and that being overruled he entered a plea of not guilty. The case was tried upon the second and third counts, and he was found guilty on the second count and duly sentenced. The circuit court affirmed the judgment, and thereupon he filed his petition in error in this court, seeking to reverse the judgments below.

Rankin & Rector, for plaintiff in error.

1. The second count of the indictment, upon which the verdict of guilty rested, is fatally defective, and the court erred in overruling a demurrer to this count.

a. The second count does not close with the words “against the peace and dignity of the state of Ohio.” Article 4, See. 20> of the constitution of Ohio.

We find no reported case in Ohio directly decisive of the question. The question was raised in Ridenour *119v. State, 38 Ohio St., 272, but not decided. The opinion, we believe, indicates that the court, had the question been decided, would have held as we insist the law is. At least the court did not intimate that Davis v. State, 19 Ohio St., 270, relied on the defendant in error, is any precedent.

There can be no doubt, after a review of the authorities given below, that each count of the indictment must conclude with the words required by the constitution.

We beg the court to examine the following authorities, as directly in point and as conclusive: Constitution of Ohio, Art. 4, Sec. 20; Cox v. State, 34 Am. Rep., 746; Haun v. State, 44 Am. Rep., 707; State v. Soule, 20 Me., 19; State v. Pemberton, 30 Mo., 376; State v. Clevenger, 25 Mo. Appeals, 655; Constitution of Mo., Art. 6, Sec. 38; State v. Lapez, 19 Mo., 254; Early v. Commonwealth, 86 Va., 921; Commonwealth v. Carney, 4 Grattan (Va.), 546; Thompson v. Commonwealth, 20 Gratt. (Va.), 724; Williams v. State, 47 Ark., 230; State v. McClung, 35 W. Va., 28 Bishop’s New Criminal Procedure, Vol. 1, p. 384, Sec. 649; page 386, Sec. 652; State v. Strickland, 10 S. C., 191.

b. Venue is not alleged in the second count.

Venue is an essential element of the crime charged.

The said count alleges that John Olendorf, late of said county (we merely infer that Franklin county is meant), unlawfully made an assault and then and there ravished and carnally knew Annie Cloman. The words “then and there” are not sufficient to lay the venue in Franklin county. They do not and cannot be said to refer, with sufficient definiteness, to Franklin county, simply because it is alleged that the defendant is late of Franklin county. He might have *120been late of Hamilton county, but in no way would that affect the place of the commission of the crime charged. Knight v. State, 54 Ohio St., 365.

For a valuable discussion of the law as we claim it, see 10 Am.- ánd Eng. Ency. Law, pp. 566-567; State v. Johnson, 23 S. E., 619.

0. The second count does not allege the age of the defendant. Hiltabiddle v. State, 35 Ohio St., 52.

Edward L. Taylor, Jr., prosecuting attorney; Augustus T. Seymour, and Karl T. Webber, for defendant in error.

1. Is the second count of the indictment fatally defective?

(a) The first defect in the second count in the indictment relied upon by the defendant in error as a ground for reversing the judgment of the circuit court, is that said count in said indictment does not conclude with the words, “against the peace and dignity of the state of Ohio.”

Section 20, Art. 4 of the constitution of the state of Ohio, is invoked against this count of the indictment. The indictment in this case does conclude with the words, “against the peace and dignity of the state of Ohio,” as required by said section of the constitution. And every provision of the constitution in this case has been complied with.

What reason can there be why the court should enlarge upon the provisions of the constitution and read into said section the words, “Count of the indictment” in the place of the word “indictment?” If the framers of the constitution intended that each count of the indictment should conclude in the language “against the peace and dignity of the state of Ohio,” that language would have been used in the construe*121tion of the constitution. And in the absence of the requirement that each count should conclude as contended by plaintiff in error, we can see no reason why the court should so construe that section of the constitution as to make this requirement. Davis v. State, 19 Ohio St., 270; Nicholas v. State, 35 Wis., 308; McGuire v. State, 37 Ala., 161; Rice v. State, 3 Heisk. (Tenn.), 215; State v. Lea, 1 Cold., 175; Stebbins v. State, 31 Tex. Crim. Rep., 294; State v. Travis, 39 La. Ann., 356.

(6) It is objected by the plaintiff in error that the second count of the indictment did not properly lay the venue of the crime.

Section 7215, Rev. Stat. of Ohio, the statute of jeofails provides, among other things, that “no indictment shall be deemed invalid, nor shall the trial, judgment or other proceeding be stayed, arrested, or in any manner affected, * * * for the want of an allegation of the time or place of any material-fact when the time and place have once been stated in the indictment.” Evans v. State, 24 Ohio St., 208; State v. S. A. L., 77 Wis., 467.

(c) The third objection to the second count of the indictment is that the age of the defendant is not alleged therein.

Under Sec. 6816, Rev. Stat. Ohio, it is necessary to allege the age of the defendant when he has abused a female person with her consent, but it is not necessary when the charge is that the rape was against her will. 1 Wharton Crim. Law, Sec. 572.