State v. Scott
| Decision Date | 31 January 1875 |
| Citation | 72 N.C. 461 |
| Parties | STATE v. ANDREW SCOTT. |
| Court | North Carolina Supreme Court |
In an indictment for an assault with intent to commit a rape, the omission of the word “feloniously,” in the description of the offence is a fatal defect.
( State v. Johnson, 67 N. C. Rep. 55, cited and approved??)
INDICTMENT, for an assault with intent to commit a rape tried before Henry, J., at Fall Term, 1874, HALIFAX Superior Court.
The defendant was tried and convicted on the following indictment, to wit:
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¦“North Carolina,¦)¦ ¦ ¦
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¦ ¦)¦Superior Court.¦Fall Term, 1874.¦
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¦Halifax County. ¦)¦ ¦ ¦
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The jurors for the State upon their oath present: That Andrew Scott, late of Halifax county, on the second day of November, 1874, with force and arms, at and in the county aforesaid, in and upon one Julia Pittman in the peace of God and the State then and there being, violently and feloniously, did make an assault, with intent, her the said Julia Pittman, against her will, then and there to ravish and carnally know, contrary to the form of the Statute, in such cases made and provided and against the peace and dignity of the State.
HARRIS, Sol.”
The counsel for the defendant moved the Court to arrest judgment, on account of defects in the indictment. The motion was overruled, and the defendant appealed. The grounds of object to the bill are fully set forth in the opinion of the Court.
Day and W. Clark, for defendant .
Attorney General Hargrove, for the State , cited in support of the indictment, the following cases: State v. Jim, 1 Dev. 142; State v. Martin, 3 Dev. 329; (2 Bat. Dig. 737;) State v. Farmer, 4 Ired. 224; (2 Bat. Dig. 743;) State v. Tom, 2 Jones, 414; State v. Dick, 2 Murp. 388; State v. Johnson, 67 N. C. Rep. 55; Rev. Code, chap. 35, sec. 14.
The defendant having been convicted on an indictment, charging him with an assault upon one Julia Pittman with intent to commit rape, moved in arrest of judgment for alleged defects in the bill of indictment. It is only necessary to notice one of the alleged defects as that is fatal to the bill.
“That the indictment should have charged the assault, with intent, &c., feloniously to ravish and carnally know.” Whereas the word feloniously is omitted where it is necessary to characterize the act of ravishing.
It is true the assault is charged to have been violently and feloniously made; but this essential word, feloniously, which cannot be supplied by any paraphrasis, is omitted in the important place where it is necessary to characterize the crime.
An assault may be made, not only with the intent to commit rape, but other felonies; murder for instance; hence we cannot refer the word feloniously to the crime, when it is only used to qualify the assault.
Mr. Archbold gives the following form of an indictment for assault with intent to commit a rape:
“That, &c??, in and upon one A. N. in the peace of God and our...
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...3 Lea, 162; Clemons v. State, 92 Tenn. 282, 21 S.W. 525; Williams v. State, 10 Tex.App. 8; State v. Bohn, 19 Wash. 36, 52 P. 325; State v. Scott, 72 N.C. 461. In case at bar the words denoting the elements of the crime of robbery were used in the information in describing the assault, but n......
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... ... 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 ... ...
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...FYAN, Judge. John O'Day for appellant, cited, as to the sufficiency of the indictment, Gouglemann v. The People, 3 Park. Cr. 15; State v. Scott, 72 N. C. 461; Sullivan v. State, 3 Eng. Rep. 400; Com. v. Bennet, 2 Va. Cas. 235; 1 Russell on Crimes, (2 Ed.) 686; Bishop on Stat. Crimes, § 484.......
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