State v. Marsh

• Decision Date: 31 March 1903
• Citation: 43 S.E. 828,132 N.C. 1000
• Parties: STATE v. MARSH.
• Court: North Carolina Supreme Court

43 S.E. 828

132 N.C. 1000

STATE v. MARSH.

Supreme Court of North Carolina

March 31, 1903

Appeal from Superior Court, Union County; Timberlake, Judge.

John Marsh was convicted of rape, and he appeals. Judgment arrested.

Where an indictment for rape charged that defendant unlawfully and feloniously made an assault on prosecutrix, and then unlawfully, feloniously, etc., did ravish and carnally know her, but failed to charge that the act was done "forcibly" and "against her will," it was insufficient.

The indictment is as follows: "The jurors for the state upon their oaths present that John Marsh, late of the county of Union, on the 27th day of October in the year of our Lord one thousand nine hundred and two, with force and arms at and in the county aforesaid, in and upon one Alice Carelock in the peace of God and the state then and there being, unlawfully willfully, violently, and feloniously did make an assault and her, the said Alice Carelock, then and there unlawfully, willfully and feloniously did ravish and carnally know, against the form of the statute in such case made and provided, and against the peace and dignity of the state."

Redwine & Stack and Armfield & Williams, for the prisoner. The Attorney General, for the State.

CLARK C.J.

The prisoner's counsel moves in this court in arrest of judgment for defect in the indictment, which is set out above in the statement of the case. This he had a right to do, though no objection on that ground was taken in the court below. State v. Watkins, 101 N.C. 702, 8 S.E. 346; State v. Caldwell, 112 N.C. 854, 16 S.E. 1010; rule 27 of this court (39 S.E. xiv).

Code 1883, § 1101, defines "rape" as the "ravishing and carnally knowing any female of the age of ten years or more, forcibly and against her will," with the further statement as to what constitutes rape when the female is under that age. All the authorities concur that the word "ravish" is indispensable. Hale, P. C. 628; 2 Rawle's Bouvier, Law Dict. 825; Coke, Litt. 184, note p; Gougleman v. People, 3 Parker, Cr. R. 15. It takes its place with "feloniously," "burglariously," and "malice aforethought," which have been held indispensable ( State v. Arnold, 107 N.C. 861, 11 S.E. 990; State v. Barnes, 122 N.C. 1036, 29 S.E. 381) wherever appropriate, because they have no synonyms (2 Hawkins, P. C. c. 23, § 77). As to the words "carnally know," there are authorities which hold that they are not indispensable, being implied in the word "ravish." Wharton, Cr. Pl. & Prac. (9th Ed.) § 263. But there are others that rather intimate that these words should be also used. The word "feloniously" is, of course, indispensable (State v. Scott, 72 N.C. 461), as, indeed, it is in all indictments for felonies ( State v. Bunting, 118 N.C. 1200, 24 S.E. 118). But all three of the above terms are used in the indictment in this case. The defect alleged is the absence of the words "forcibly" and "against her will." As to the word "forcibly," in State v. Jim, 12 N.C. 142, it was held that an indictment omitting both terms "forcibly" and "against her will" was defective. In State v. Johnson, 67 N.C. 55, it was held that the omission of the word "forcibly" was not fatal, when the charge was "against her will, did feloniously ravish"; the court saying, through Reade, J., that any equivalent word would answer in lieu of "forcibly"; that, though the word "ravish" would seem to imply force, yet that word is not an express charge of force, standing alone, but that the addition thereto of the words "feloniously" and "against her will" was sufficient, under our statute, as an express charge of force. In State v. Powell, 106 N.C. 635, 11 S.E. 191, where both the words "forcibly" and "against her will" were omitted, it was held, following State v. Jim, supra, that the bill was defective. This last case was for an assault with intent to commit rape, and was overruled in State v. Peak, 130 N.C. 711, 41 S.E. 887, but only on the ground that, in an indictment for assault to commit rape, it was not necessary to describe rape in the words which must be used to charge the offense of rape itself. Thus, on a review of our authorities, it will be seen that it has been held that the absence of both "forcibly and against her will" are fatal, but that "forcibly" can be supplied by any equivalent word; that it is not supplied by the use of the word "ravish," but it is sufficiently charged by the words "feloniously and against her will." In all the cases above reviewed, where the words "against her will" are omitted, the bill was held defective. No doubt, the words "against her will" can be supplied by an equivalent as well as the word "forcibly," but we do not find such equivalent in this bill. The words "unlawfully, willfully, and feloniously" did "ravish and carnally...