State v. Peak

• Decision Date: 10 June 1902
• Citation: 41 S.E. 887,130 N.C. 711
• Parties: STATE v. PEAK.
• Court: North Carolina Supreme Court

41 S.E. 887

130 N.C. 711

STATE v. PEAK.

Supreme Court of North Carolina

June 10, 1902

Appeal from superior court, Polk county; Councill, Judge.

Henry Peak was found guilty of an assault with intent to rape, and the state appealed from an order arresting the judgment. Reversed.

Cook and Douglas, JJ., dissenting.

An indictment alleged that defendant, "with force and arms * * * unlawfully, willfully, and feloniously did commit an assault upon the body of M., with intent her, the said M unlawfully and willfully and feloniously to rape, against the will of said M." Held error to arrest judgment after verdict because of the omission of the word "forcibly," the indictment correctly charging an assault, and the verdict being imputed to the matter correctly charged.

The Attorney General, for the State. Solomon Gallert, for appellee.

CLARK J.

The indictment charges that the defendant, "with force and arms, at and in the county aforesaid, unlawfully, willfully and feloniously did commit an assault upon the body of Mary Mooney, with intent her, the said Mary Mooney, unlawfully and willfully and feloniously to rape, against the will of said Mary Mooney," etc. There was no motion to quash, nor exception to evidence or charge, but after verdict of guilty the judgment was arrested on motion of defendant because of the omission of the word "forcibly." In any possible aspect, this is error, and the case must go back for judgment. This is unquestionably a good bill for assault, and the verdict is always imputed to the matter correctly charged. State v. Toole, 106 N.C. 736, 11 S.E. 168, and authorities there cited. If, when the case goes back for judgment, the court shall impose sentence for the aggravated assault "with intent to rape," then an appeal by defendant would present the question whether the bill authorizes such punishment, and any discussion of that question now is to some extent hypothetical and obiter dictum. But, as the matter has been discussed, it is perhaps proper to say that the omission of the word "forcibly," in view of the context, is not fatal, certainly not after verdict; and this is a good bill for assault with intent to commit rape, both at common law and by statute. "On an indictment for an assault with intent to commit an offense the same particularity is not necessary as is required in an indictment for the commission of the offense itself," says Dr. Wharton. 1 Whart. Cr. Law (9th Ed.)§ 644; Lacefield v. State, 34 Ark. 275, 36 Am. Rep. 8. An indictment for an assault with intent need not specify the facts necessary to constitute that offense which was intended to be, but was not in fact, perpetrated. So, in an indictment for breaking into a dwelling house with intent to commit rape, the crime of rape need not be fully and technically charged. Whart. Cr. Pl. (9th Ed.) § 159, and cases cited in notes to above paragraphs; Com. v. Doherty, 10 Cush. 52; Singer v. People, 13 Hun, 418; Id., 75 N.Y. 608. These cases are from courts of the highest character, are explicit and clear in their reasoning, and cite other authorities. At common law, as the above citations establish, the bill was good. Our own statutes and decisions are to the same purport. The Code (section 1101) defines rape as the "ravishing and carnally knowing any female of the age of ten years or more by force and against her will." In indictments for that offense under our decisions, while the word "forcibly" need not be used, its equivalent, and that the act was against the will of the female, must be charged. State v. Johnson, 67 N.C. 55. Section 1102 prescribes the punishment for "assault with intent to commit rape." A pleader who uses the words of the statute is safe. Here the charge, following the statute, is a sufficient one for assault "with intent to commit rape." We have had an analogous case at this term. Code, § 995, makes the breaking into a dwelling house of another "with intent to commit a felony" burglary, and section 996 makes the breaking into a dwelling house not burglariously, or the breaking into a house not a dwelling, or dwelling if uninhabited, "with intent to commit a felony," a crime. Under both these sections it has been held sufficient to allege the breaking properly, and add merely "with intent to commit larceny," without alleging anything more, such as "to feloniously take and carry away certain goods, to wit, *** the property of A."; in short, following the common-law rule, as above, that an indictment for assault to commit an offense need not technically charge the offense intended to be committed. This is clearly and distinctly held in State v. Tytus, 98 N.C. 705, 4 S.E. 29, State v. Christmas, 101 N.C. 749, 8 S.E. 361, and was reaffirmed in State v. Ellsworth (at this term) 41 S.E. 548. If, therefore, this had been an indictment for breaking into a house (whether dwelling or not), and the breaking were sufficiently charged, it would be sufficient to add merely "with intent to commit rape" or "to commit larceny"; and it follows that, if an assault is sufficiently charged, it is sufficient to add merely "with intent to commit murder" (see many precedents cited by Wharton, supra), or simply "with intent to commit rape," as the others cited by him from New York and Massachusetts, supra, hold. They are courts of high repute. Besides, an objection that the offense intended to be committed is not sufficiently charged "comes too late after verdict." State v. Christmas, 101 N.C. 749, 8 S.E. 361, and cases there cited. As the constituent elements of the offense intended to be committed were not perpetrated and cannot be proved, why, as the decisions say, charge more than an intent to murder, to steal, or to rape?

Then there is Code, § 1183, enacted to meet just such cases as this, which is an expression of the sovereign power, speaking through the lawmaking body, that there is an evil, and it must be remedied; and that is the quashing bills or arresting judgments "by reason of any informality or refinement," which it is declared shall not be done "if sufficient matter appears to enable the court to proceed to judgment." Here the defendant is charged with assaulting the giral with force and arms, with intent feloniously, unlawfully, and willfully to rape her against her will; and the jury have said he did it. The statute says (Code, § 1102) if any one commits "an assault with intent to commit rape" upon a female he is punishable. "Sufficient matter appears to enable the court to proceed to judgment," for the charge and conviction are in the very words of the statute. The defendant knew the charge against him. He made no objection by motion to quash or for bill of particulars. He heard the evidence, and only after verdict makes the objection that the charge of "intent to rape" did not set out the constituents of the offense of rape, which offense he is not charged to have committed. If this is not a "refinement" which the statute was passed to prevent, it is hard to conceive to what it would apply. This section (1183) was originally passed in 1811, and has been observed by the court in a long line of cases, commending its...