State v. Goldston

• Decision Date: 06 May 1889
• Citation: 9 S.E. 580,103 N.C. 323
• Parties: STATE v. GOLDSTON.
• Court: North Carolina Supreme Court

9 S.E. 580

103 N.C. 323

STATE v. GOLDSTON.

Supreme Court of North Carolina

May 6, 1889

Appeal from superior court, Moore county; MERRIMON, Judge.

The Attorney General, for the State.

A. P Gilbert and W. E. Murchison, for respondent.

MERRIMON J.

The indictment charges that the defendant, "with force and arms, at and in," etc., "on," etc., "in and upon one Mittie McKay, she being a female child under ten years of age, unlawfully and willfully did make an assault and did then and there unlawfully attempt to carnally know the said Mittie McKay, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state." Upon the plea of "not guilty" to this indictment, on the trial, there was a verdict of guilty. The court, on motion, arrested the judgment, upon the ground that the indictment was fatally defective, in that it failed to charge that the defendant assaulted the child therein named "with intent feloniously to carnally know," etc. The court further decided that the defendant was by the verdict found guilty of that offense, and not of a simple assault, and that the indictment was not framed with a view to charge, nor did it charge, a simple assault, because it did not charge that force was used, or that there was an attempt to use it. The solicitor insisted that it sufficiently charged "an assault with intent to carnally know," etc. The case settled on appeal states "that there was no evidence that he [the defendant] used any violence," and that "there was evidence tending to show that she [the child] consented." The solicitor for the state, having excepted, appealed from the order arresting the judgment to this court.

The statute (Code, § 1101) prescribes that "every person who is convicted of ravishing and carnally knowing any female of the age of ten years or more, by force and against her will or who is convicted of unlawfully and carnally knowing and abusing any female child under the age of ten years, shall suffer death." It is a settled construction of the latter clause of this statute that to carnally know and abuse any female child under ten years of age, whether she consents to such carnal knowledge and abuse or not, is rape. State v. Johnston, 76 N.C. 209; State v. Dancy, 83 N.C. 608. The same statute (Code, § 1102) further prescribes that "every person convicted of an assault with intent to commit a rape upon the body of any female shall be imprisoned in the penitentiary not less than five nor more than fifteen years." The defendant is indicted under this section of the statute, "for the assault with intent to commit a rape." The indictment does not charge that offense sufficiently, because it fails to charge the intent with which the assault was made. It is essential that such intent shall be charged. The offense is not complete without it, and the indictment is bad when it fails to charge all the essential elements of the offense intended to be charged. State v. Moore, 82 N.C. 659; State v. Russell, 91 N.C. 624.

The indictment seems to have been prepared hastily and incautiously. It does not charge an "assault with intent," etc., but it charges that the defendant "did make an assault, and did then and there unlawfully attempt," etc.,--that is, did some act towards committing a rape; but the act is not the intent, though it may be evidence of it. The intent is the fixed purpose of the mind in connection with the assault. This the statute makes an essential element of the offense, and it, not the evidence of it, must be charged. It is possible that some word or expression would suffice as a substitute for the word "intent" as employed in the statute, but it is an expressive, precise, word, well understood, and much used in statutes, and it is not at all safe for pleaders to omit it in all proper connections. The charge should be "with intent feloniously," etc. State v. Martin, 3 Dev. 329; State v. Scott, 72 N.C. 461; State v. Jesse, 2 Dev. & B. 297.

The court therefore properly held that the indictment did not sufficiently charge an "assault with intent to commit rape." But we are of opinion that it erred in holding that it did not sufficiently charge a simple assault, and that the defendant could not, upon it, be convicted of that offense, if the evidence should satisfy the jury of the defendant's guilt. It is charged that the defendant "with force and arms, at," etc., "on," etc., "in and upon one Mittie McKay, *** did make an assault, *** against the peace and dignity of the state." Thus an assault is charged. The words of the indictment omitted may be treated as--indeed, they are--surplusage,--mere redundant matter,--serving no material purpose, nor do they...