State v. Jim

• Decision Date: 31 December 1826
• Citation: 12 N.C. 142
• Court: North Carolina Supreme Court
• Parties: THE STATE v. JIM, a

12 N.C. 142

THE STATE

v.JIM, a

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1826

From New Hanover.

1. In an indictment for a rape, the words "forcibly and against the will" are necessary.

2. Hence, an indictment for a capital felony, under the act of 1823, not containing those words, was held to be fatally defective.

3. Per Taylor, C. J., a slave on the trial of such an indictment is entitled to a jury of slave-owners.

THE defendant was indicted under the act of 1823 for making an assault "in and upon the body of one M. J., a white female, with intent her the said M. J. then and there feloniously to ravish and carnally know, etc."

In making up the jury the counsel for the defendant challenged for cause those jurors who were not owners of slaves, which was overruled by the presiding judge. After a verdict for the State the defendant's counsel moved in arrest of judgment because it was not charged in the indictment that the offense was committed "violently, forcibly, and against the will of the said M. J." His Honor, Judge Norwood, for this cause arrested the judgment, whereupon the solicitor prayed an appeal to this Court.

HENDERSON, J. Rape is the carnal knowledge of a female, forcibly and against her will. These essential requisites, forcibly and against her will, are omitted in this indictment. But it is said that as the word "ravish" of itself implies that the act was done forcibly and against the will of the female, the words "feloniously ravished" supply this defect. This would be transferring from the court to the jury the right and power of drawing inferences of law; they and not the court would decide what acts did and what did not amount to rape. The law, therefore, in this and all other cases, requires the facts which constitute the offense to be stated, that the jury may affirm them or not, according to the evidence. Thus in murder, which ex vi termini means a homicide committed with malice aforethought, it is not sufficient to state in the indictment that the accused feloniously murdered the deceased. And so in other offenses the facts constituting the offense must be stated, for without such statement it cannot appear to the

court that the jury have not drawn a false and impossible conclusion. The indictment, therefore, is defective, and the judgment of the Superior Court must be affirmed.

There are other points arising in the cause upon which, as they have not been argued, I do not wish to express an opinion.

TAYLOR, C. J. The charge in this indictment was no more than a misdemeanor at common law, though an aggravated one, as it still continues in relation to all but the colored population. But the form of the indictment constantly laid the intent to be to commit the offense "violently andagainst the will" of the female, as appears from the precedents referred to by the Attorney-General. The late act of Assembly having elevated the offense to a capital felony, affords...