State v. Hewett
| Decision Date | 27 March 1912 |
| Citation | 74 S.E. 356,158 N.C. 627 |
| Court | North Carolina Supreme Court |
| Parties | STATE. v. HEWETT. |
An indictment which alleges that accused with force and arms unlawfully and feloniously did assault prosecutrix, and did feloniously attempt to ravish and carnally know her, forcibly and against her will, charges an assault with intent to rape, though the words "with intent" are omitted, since the words used import an intent to commit rape.
[Ed. Note.—For other cases, see Rape, Cent. Dig. §§ 37-41; Dec. Dig. § 34.*]
An "attempt" in criminal law is an effort to accomplish a crime amounting to more than mere preparation and planning for it, and which, if not prevented, will result in the consummation of the act attempted.
[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 51; Dec. Dig. § 44.*
For other definitions, see Words and Phrases, vol. 1, p. 621; vol. 8, p. 7586.]
One cannot be indicted for an attempt to commit a crime where the crime attempted is in its very nature an attempt.
[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 51; Dec. Dig. § 44.*]
Appeal from Superior Court, Brunswick County; Whedbee, Judge.
I. A. Hewett was convicted of an assault with intent to commit rape, and he appeals. Affirmed.
The following is the indictment: "The jurors for the state, upon their oaths, present that I. A. Hewett, late of the county of Brunswick, on the 20th day of July, 1911, with force and arms, at and in the countyaforesaid, unlawfully, willfully, and feloniously did assault, beat, and wound one Lundie Bozeman, and her, the said Lundie Bozeman, did feloniously then and there attempt to ravish and carnally know, forcibly and against her will, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state."
Cranmer & Davis, for appellant.
Attorney General Bickett and Assistant Attorney General Calvert, for the State.
BROWN, J. [1] The bill is in the usual form, but omits the words "with intent." After charging a felonious assault upon Lundie Bozeman, the bill concludes, "and her, the said Lundie Bozeman, did feloniously then and there attempt to ravish and carnally know forcibly and against her will, " etc. There are two decisions of this court which sustain the contention of the defendant—State v. Martin, 14 N. C. 329, and State v. Goldston, 103 N. C. 323, 9 S. E. 580 —but with perfect deference we must say we are not impressed with the reasoning upon which they are based, and we are no longer willing to follow them as controlling precedents. No rule of property is involved, but solely a question of criminal pleading. The Goldston Case followed the precedent of the Martin Case, and, while not expressly overruled, the authority of both is very much shattered, if not practically destroyed, by the opinion of the court in State v. Barnes, 122 N. C. 1034, 29 S. E. 381. In that case the bill did not charge any "attempt, " and omitted the words "with intent" altogether, but the court held that the words "with the intent" are not "sacramental." but that words are sufficient if they are tantamount to the charge of a felonious assault with the design or purpose to commit rape. In that case the bill of indictment is in part as follows: "Did make an assault and her, the said, * * * then and there forcibly, violently, and against her will, then and there feloniously to abuse, ravish, and carnally know." The court held that the words were sufficient to charge the intent. In the bill in this case the felonious assault is specially charged, and that this assault was made in an attempt to commit rape. The basis of the decision in Martin's Case is that an attempt to do a thing is expressive of the overt act of moving towards its accomplishment, rather than of the purpose or intent itself. We cannot appreciate the distinction. It is too subtle. We are unable to see how a man can commit a felonious assault upon a female, and attempt to ravish her, without intending it. The words used in the bill,...
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......State v. Parker, 224 N.C. 524, 31 S.E.2d 531; State v. Addor, 183 N.C. 687, 110 S.E. 650, 22 A.L.R. 219; State v. Hewett, 158 N.C. 627, 74 S.E. 356; State v. Hefner, 129 N.C. 548, 40 S.E. 2; State v. Colvin, 90 N.C. 717, 718; 16 C.J. 113; 22 C.J.S, Criminal Law, § 75. "An indictable attempt, therefore, consists of two important elements: (1) an intent to commit the crime, and (2) a direct ineffectual act ......
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