Camp v. The State Of Ga.
| Decision Date | 30 September 1847 |
| Docket Number | No. 58.,58. |
| Citation | 3 Ga. 417 |
| Parties | Burton Camp, plaintiff in error. vs. The State of Georgia, defendant in error. |
| Court | Georgia Supreme Court |
Indictment for an assault with intent to commit a rape. Tried before Judge Dougherty. In Gwinnett Superior Court. March Term, 1847.
The prisoner was convicted, and a motion made for new trial, and also in arrest of judgment.
For the grounds in support of each of these motions, and the questions made, the reader is referred to the opinion delivered by the Supreme Court.
In reference to the ground for new trial, predicated upon that part of the charge of the Court to the jury, ruling that the testimony of the witness for the prisoner as to the want of chastity of Cynthia Emeline Davis, upon whom the assault was alleged to have been made, was admitted solely to enable them to judge of the intention of the prisoner, it is thought proper to state, that said Cynthia Emeline Davis was the principal State's witness, that she alone proved the offence charged, and that on the part of the prisoner it was proven that she was a woman of ill fame.
Hillyer, Jackson & Simmons, for the prisoner.
Wm. H. Hull, representing Sol. Gen'l. Harris, for the State.
Mr. Hull submitted the following positions:
The character of a witness for want of chastity, does not impeach her veracity. Roscoe Crim. Ev. 165; 1 Starkie on Ev. 211, note.
It was lawful for the judge, in his discretion, to permit the Solicitor General to ask a juror as to his place of residence.
It is no ground for a new trial, that a physician is called to see a sick juror in the jury room, when it appears that nothing was said by him about the case. Graham on New Trials, 92.
The indictment was good. Prince, 625.
The words violently and feloniously, are not necessary under our penal code. Prince, 658.
A new trial will not be granted in case of felony for the misdirection of the Judge. Graham on New Trials, 506, 507, 516; Chitty Grim. Law, 654, and notes.
When the testimony of the prisoner was admitted to the jury, it is no ground of new trial that the Court gave a wrong effect to it in the charge.
By the Court.—Nisbet, J., delivering the opinion.
The first exception in this case, is founded on the refusal of the Court to grant a new trial, because the indictment does not charge the offence to have been committed "violently and feloniously."
The indictment charges the offence substantially in the language of the code defining it, and that is sufficient. "Rape is the carnal knowledge of a female, forcibly and against her will." Hotchk. 709. An attempt to commit a rape, the offense for which the defendant was indicted, is an attempt to know a female forcibly and against her will. Our code does not, in so many words, make this an offence; it does, however, by implication, because it prescribes a punishment for an attempt to commit a rape. There was no necessity to define an attempt to commit a rape. Rape being defined, the attempt to commit a rape is included in that definition. In pleading, therefore, the offence of an attempt to commit a rape is to be described according to the definition of rape. If, in the description of it, the offence is stated in the terms and language of the penal code, or so plainly that the nature of it may be easily understood by the jury, it is sufficient; for the Legislature has declared that "Every indictment or accusation of the Grand Jury shall be deemed sufficiently technical and correct, which states the offence in the terms and language of this code, or so plainly that the nature of the offence charged may be easily understood by the jury." Hotchk. 787. The statement of the offence in this indictment, is, that the defendant, with force and arms, in the county aforesaid, in and upon one Cynthia Emeline Davis, a white female, in the peace of God and said State then and there being, did make an assault and her the said Cynthia Emeline Davis, did then and there beat, wound and ill treat, with intent, her, the said Cynthia Emeline Davis, forcibly and against her will, then and there, carnally to know and feloniously to ravish, and other wrongs, &c." The prime elements of the crime are stated, to wit, with force and arms, forcibly and against her will carnally to know the prosecutrix. As to this exception, we hold the indictment good.
Another ground upon which the defendant sought to arrest [2.] the judgment, is, that the indictment charges him with the offence of "an attempt to commit a rape, " when it should have designated the offence, a misdemeanor, because our penal code declares, that attempts to commit the offences in it defined, shall be indicted as misdemeanors. The Court below overruling this ground, the plaintiff in error excepted. We do not think the circuit Judge erred in this particular, for two reasons:
1. Because the code having prescribed a specific penalty for an assault with intent to commit a rape, thereby created it an independent offence, and took it out of the operation of the general clause referred to.
2. If this is not so, then it is sufficient to say that this is an indictment for misdemeanor. The name given to it in the bill, does not characterize the offence: the description does characterize it. It may be, and it is, called an assault with intent to commit a rape, and yet may be, and by the description in this case is, a misdemeanor. Again, it is claimed that the Court below erred in this, that it permitted the Solicitor General, when each juryman was called, to inquire of him in what part of the county he resided; because, says the counsel for the plaintiff in error, the law permits no such question to be put to test the competency of the juror. The reason is true, and yet we do not think that there is anything in the exception; because it appears from the statements in the bill, that this was no judicial act; it was permitted, because not objected to, as mere matter of convenience. The question of right to put such a question was not made, and not decided by the presiding Judge; we have, therefore, nothing touching this exception to review.
The only other ground of error found in this bill, and urged by [3.] counsel, grows out of the charge of the Court to the jury. The charge of the Court is stated in the bill of exceptions in thefollowing words: This instruction was given to the jury, as to the force and effect of the testimony which had been admitted going to show that the female assaulted, was a person of ill fame. The plaintiff in error charges error in these instructions, in this, that the effect of such testimony is not solely to enable the jury to judge of the intention of the defendant in committing the assault; but its further effect is, to impeach the credibility of the witness, who was the person alleged to be injured, by disproving her statements that the assault was made forcibly and against her will.
We agree with the learned judge, that evidence of the want of chastity in the prosecutrix, may be admitted to show the intention of the defendant in perpetrating the assault, that is, to show that he did, or did not, intend forcibly and against her will, to commit a rape on the prosecutrix. Hut we do not...
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