Indictments and Information

Generally, two or more distinct offenses cannot be joined in the same count.  However there are some exceptions.  If the different offenses result from the same act and transaction, they can be joined in the same count[i].

Therefore, duplicity in an indictment applies when two or more distinct offenses are joined in one count[ii].  For example, the crimes of incest and rape can be joined in the same if both charges are founded on the same criminal act[iii].

It is to be noted that an indictment cannot be considered to be defective if it charges both common-law rape and the statutory crime.  However, as the crimes of common-law rape and statutory rape are entirely distinct, a state cannot charge a rape of the one class and sustain the charge by proof of a rape of the other class[iv].

However, a single indictment for rape is proper where the alleged multiple acts of penetration is part of a continuing criminal episode. Whereas, separate acts of rape of a victim, committed at different time and place and the product of several intents will be severally punishable[v].

If two counts in an indictment relate to the same transaction, that of unlawfully and feloniously having carnal knowledge of the complaining witness, the punishment for each is the same and the crimes charged are the same.  Only the proof necessary to establish them differs[vi].

Generally, the exact time of the commission of a crime set forth in an information or indictment is not necessary to be proved in a statutory rape case.  However, the exact time may be necessary if the act was committed before the prosecutrix reached the age of consent[vii].

It is to be noted that an indictment must state the facts constituting the offense, in ordinary and concise language, in such manner as to enable a person of common understanding to know what is intended.  Similarly, it must inform the accused not only of the nature of the offense, but also of the particular act or means by which it was committed[viii].

In indictments and information for rape and similar offenses, the essential elements of the offense must be alleged in either similar or by equivalent terms.  If the words convey the same meaning, it is considered to be sufficient.  However, in some jurisdictions, if an indictment charging fails to expressly allege that the act was performed against the will or without the consent of the female, it is regarded to be defective[ix].

It is to be noted that an indictment for an attempt to commit rape must allege the intent, the overt act constituting the attempt, and the acts done toward the commission of the offense.  In an indictment, an attempt of a criminal act must be specifically averred.  However, it is not necessary to allege failure in the attempt[x].

[i] Cheek v. State, 38 Ala. 227 (Ala. 1862).

[ii] Reagan v. State, 28 Tex. Ct. App. 227 (Tex. Crim. App. 1889).

[iii] Porath v. State, 90 Wis. 527 (Wis. 1895).

[iv] Greer v. State, 50 Ind. 267, 268 (Ind. 1875)

[v] State v. Jones, 1989 Tenn. Crim. App. LEXIS 93 (Tenn. Crim. App. Feb. 9, 1989).

[vi] State v. Houx, 109 Mo. 654 (Mo. 1892).

[vii] State V. Goddard, 69 Ore. 73 (Or. 1913).

[viii] McLemore v. State, 562 So. 2d 639 (Ala. Crim. App. 1989).

[ix] State v. Marsh, 134 N.C. 184 (N.C. 1903).

[x] Hogan v. State, 50 Fla. 86 (Fla. 1905).


Inside Indictments and Information