CHARLESTON.

#### State v. H. A. Wright.

Submitted September 12, 1922.

Decided September 19, 1922.

1. Ckiminai. *Law*— Questions *as to Time of Trial, Not Raised Below, Not Considered on Appeal.*

The right of a defendant to bes discharged from prosecution for failure to bring him to trial within three terms of the court after the finding of the indictment is not properly presented by demurrer or motion to quash the indictment, but by motion only addressed to the trial court, and such motion not haying been so presented, will not be considered here on writ of error, (.p. 501.)

2. Indictment and *Information*— Rape—Unnecessary *to Allege Accused Over 1J¡ Years in Indictment Charging Rape; Fact That Accused, Indicted for Rape, Under 1%. Years, Matter of Defense.*

In an indictment for rape under section 15, chapter 144 of the Code, 1918, it is unnecessary to allege that the defendant was over fourteen years of age, and thereby to negative the exception contained in the proviso of that statute, such fact if true being matter of defense, (p. 501.)

3. *Rape*— ■Evidence *as to Age of Accused May he Properly Admitted Under Allegation Charging Felonious Commission.*

But if on the trial of such indictment, the age of the defendant becomes affirmative matter for the State to prove, evidence thereof would properly be admitted under the averment charging him with wilfully, unlawfully and feloniously committing the offense. Op. 502.)

4. Criminal *Law*— Law *at Time Offense Committed Governing Character and Punishment; One Convicted of Rape, Fleeting, May he Punished Under Amendment to Law at Time of Offense.*

The statute in force at the time of the commission of an offense governs the character of the offense, and generally the punishment prescribed thereby, unless, as provided by our statute, the defendant elects to be punished as provided in an amendment thereof, (p. 503.)

Error to Circuit Court, Wetzel County.

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

*Reversed and remanded.*

*501
      *E. T. England,*Attorney General, *B. A. Blessing,*Assistant Attorney General, *W. J. Posilefhwait,*Prosecuting Attorney, and *H. II. Bose,*for the State.

*Larriek & Lemon,*for defendant in error.

MilleR, Judge:

The State is plaintiff in error, and brought the case here to review the judgment 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 entiled 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 thé Code. 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 áecepted by the court, is that to make a good *502indictment 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; *State*v. *Kirkpatrick,*88 W. Va. 381. 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,*90 W. Va. 806, 111 S. E. 835. That case involved a proviso in the so-called worthless check statute. We did hold that the issuance of á 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 non-payment 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 statute under consideration here, and that case is without special application here. It is argued that the defendant might be guilty of having done the acts charged and nevertheless not be guilty of the crime of rape. How so? The indictment alleges that he “unlawfully 'and felon-iously” made an assault upon a child of the age of twelve *503years, and “then and there unlawfully and feloniously did carnally know 'and abuse” her. Do not these averments cover the age limit and sufficiently negative the fact that his act was without her consent, even if he should on proof be shown to be under the age of f ourtéen years ? The indictment is in accord with well known precedents. Joyce on Indictments, Forms Nos. 125 and 126, page 819; 3 Bishop’s New Grim. Proc., (2nd ed.), § 95(2), and cases cited. One cited ease, that of *Schramm*v. *People,*220 Ill. 16, is supposed to be contrary to the doctrine of the text. In Illinois, however, the statute, in the enacting clause, is made applicable to, “every male person of the age of sixteen years or upwards.” Our statute is applied to any person who shall carnally know a female of the age of fourteen years or more against her will by force, or a female under that age with or without her consent. In the prior case of *Sutton*v. *People,*145 Ill. 279, as noted in the Schramm case, the indictment charged the offense as at common law, that is as having been committed forcibly and against the will of the female, and it was held that the averment of the defendant’s age was mere surplusage and need not be proved by the people, and that his age if under fourteen years was matter of defense. The court also held that there was no conflict between the two cases. In the former it was held that an indictment or information charging defendant with wilfully and feloniously committing rape upon the person of a female child under the age of fourteen *implies*an averment that the defendant was capable of committing the ‘offense, and that it was unnecessary to allege that he was a male or over fourteen years of age, etc. So in the case at bar, the indictment charges the defendant with unlawfully and feloniously carnally knowing and abusing the female child, impliedly averring his capacity to commit the crime; and if the State is bound to show his competency under the law, proof thereof may be admitted under the indictment in its present form. Wherefore, this point of objection to the indictment must be denied.

Lastly, as to the proposition that said section 15, chapter *504144 of the Code, was repealed by chapter *90*of the Acts of 1921, a question which it is said was first suggested by the circuit court, we think there, is no merit in this point. The act referred to in effect did amend and re-enact said section 15, by raising' the age of the female from fourteen to sixteen years, and the age of the defendant covered by the proviso from fourteen to sixteen years, and limited the offense to any person not the wife of the accused. The old law governs eases arising before an amended statute takes effect, unless otherwise ordered. Section 9, chapter 13, of the Code; *State*v. *Abbott,*8 W. Va. 741; *State*v. *Mines,*38 W. Va. 125, point 7 of the syllabus; *Burns*v. *Hays,*44 W. Va. 503, point 3 of the syllabus.

Por the foregoing reasons the judgment below quashing the indictment will be reversed, set aside and annulled, the demurrer overruled, and the case remanded to the circuit court for further proceedings.

*Reversed and remanded.*