State v. Porter
| Decision Date | 14 December 1896 |
| Docket Number | 12,290 |
| Citation | 21 So. 125,48 La.Ann. 1539 |
| Court | Louisiana Supreme Court |
| Parties | THE STATE v. HARRY PORTER |
Submitted November 21, 1896
APPEAL from the Ninth Judicial District Court for the Parish of De Soto. Hall, J.
M. J Cunningham, Attorney General, and J. B. Lee, District Attorney, for Plaintiff, Appellee.
Elam & Egan, for Defendant, Appellant.
The defendant appeals from a sentence for assault to commit rape; the indictment being for rape.
He relies for the reversal of this sentence upon the motion to quash the indictment and the bill of exceptions to the overruling the motion. The indictment charges that the accused in and on one I. B. violently and feloniously did make an assault, and her the said I. B. then and there forcibly and against her will did ravish and carnally know. The ground of the motion is the indictment sets forth no offence, the felonious intent essential to constitute the crime of rape not being charged. The assault is charged to have been felonious. The State claims that "feloniously" is to be taken also to qualify ravish and carnally know.
Indictments for common law offences must set forth the constituents of the crime; it is not sufficient to follow merely the words of the statute using the common law term of the offence. State vs. Read, 6 An. 228; State vs. Cook, 20 An. 145; State vs. Flint, 33 An. 1288. Nor can there be any question that the felonious intent to ravish and carnally know is essential to the crime of rape. The crime is of the highest order of felonies, and feloniously qualifying "ravish" it is laid down must be charged in all indictments for such crimes. 2 Archibold Crim. Practice and Pleadings, 304, 307, 312; 2 Bishop Crim. Proc. 807, 808. In this indictment "feloniously" is used in qualifying the assault, but is not used in qualifying the sentence, ravish, etc. By no rule of construction can we extend the function of this important adverb and make it qualify any act but the assault in connection with which only it is employed. If this construction required any additional support it will be supplied by the precedents for indictments found in all the books of forms, and exacted by all the authorities. The indictments invariably use the adverb twice, i. e., qualifying the assault, and again in qualifying the following acts the substantial elements of the crime, thus: the said A. B. did feloniously assault C. D., and her, the said C. D., did then and there feloniously ravish and carnally know. Archibold Ibid.; 2 Wharton's Precedents, p. 186. we have been referred by the State to authorities from other States to support the indictment. We think we must follow our own decisions, as the decisions in other States may be controlled by their legislation. The authorities (State vs. Bradford, 33 an. 921; State vs. Sonnier, 38 An. 962; Carroll vs. Succession of Carroll, 48 An. 963; State vs. Langford, 45 An. 1178; Manning's Unreported Cases, p. 394) we do not think sustain defendant's contention. Our conclusion is the indictment is defective.
The State insists that the indictment, if not sufficient for rape, will sustain the conviction for assault with intent to commit rape. Revised Statutes, 1053; State vs....
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