State v. Bean

• Decision Date: 31 March 1977
• Docket Number: No. 6749,6749
• Citation: 371 A.2d 1152,117 N.H. 185
• Parties: STATE of New Hampshire v. Gerard J. BEAN, Jr.
• Court: New Hampshire Supreme Court

Page 1152

371 A.2d 1152

117 N.H. 185

STATE of New Hampshire v. Gerard J. BEAN, Jr.

No. 6749.

Supreme Court of New Hampshire.

March 31, 1977.

David H. Souter, Atty. Gen., and Gregory H. Smith, Asst. Atty. Gen., for the State.

Robert R. Renfro, Portsmouth, by brief and orally, for defendant.

BOIS, Justice.

Defendant was charged by indictment with the crime of attempted statutory rape under former RSA 585:16, which provided:

'If any person shall ravish and carnally know any woman, committing carnal copulation with her by force, against her will, or if any man shall unlawfully and carnally know and abuse any woman child under the age of sixteen years, he shall be imprisoned not more than thirty years.'

The charging portion of the indictment alleged that the defendant 'did feloniously attempt to carnally know and abuse . . ., a woman child under the age of 16 years, to wit, age 9 . . ..' We hold that the indictment was defective for failure to allege an overt act. The charge is but a recitation of the words of the former statute.

The defendant, by motion to quash, attacked the sufficiency of the indictment for vagueness and indefiniteness, alleging that it did not fully set forth any offense and did not fully apprise him of the offense charged. The motion was denied and a trial by jury resulted in a verdict of guilty. All questions of law raised were reserved and transferred by Flynn, J.

Events surroundings the alleged incident of attempted rape are not entirely clear. The victim was a nine-year-old girl whose testimony, corroborated by other persons in the house where the alleged attempt took place, led to the defendant's conviction. The defendant testified that he was intoxicated at the time, that he had passed out, and that he had no recollection of the incident.

Three issues are raised on appeal: (1) The indictment was legally insufficient and defendant's motion to quash should have been granted for failure to allege an overt act; (2) the conviction must be set aside because the prosecution failed to prove the victim was under the statutory age of consent and; (3) the verdict must be set aside because of a variance between the actual name of the young girl and the name of the victim as stated in the indictment.

We consider first the issue of whether the indictment is insufficient in its failure to allege an overt act.

Generally, indictments which charge a crime in the language of the statute are sufficiently specific. 2 Wharton, Criminal Procedure § 289 (12th ed. 1975). However, this general rule has no application where the indictment charges an attempt to commit a crime. 'Attempt' is an indefinite term, embracing an inchoate offense. For this reason it is necessary that an indictment charging an attempt allege both an intent to commit and an overt act in furtherance of the crime. It is not sufficient to allege merely that the defendant 'unlawfully and feloniously' did attempt to commit a rape, by then and there attempting carnally to know the prosecuting witness, because such a charge does not set forth any physical act done towards the commission of the offense. 65 Am.Jur.2d Rape § 47 (1972); 75 C.J.S. Rape § 41 (1952); see 2 Wharton, supra at § 286.

In State v. Webster, 105 N.H. 415, 417, 200 A.2d 856, 858 (1964), this court noted: 'In indictments or complaints created by statute it is in general sufficient to describe the offense in the words of the statute. . . . But a complaint so drawn does not always meet the constitutional requirements that a fair and full description of the offense must be alleged.' See State v. Gilbert, 89 N.H. 134, 194 A. 728 (1937).

The state properly notes that this court has recognized that indictments need not conform to the highly technical, artificial and prolix requirements of formal pleadings. State v. Webster, 105 N.H. at 417, 200 A.2d at 857-58. RSA 601:8 indicates the clear intent of the legislature that indictments should not be quashed 'for any error or mistake where the person or case may be rightly understood by the court, nor through any defect or want of form or addition . . ..' However, such 'curative statutes' are meant only to prevent technical defects or imperfections in matters of form from frustrating the orderly administration of justice. 'This type of statute allows the court to disregard only 'a defect or imperfection in matter of form'; the court may not disregard a defect in respect of a matter of substance,...