State v. Wade
| Decision Date | 18 November 1912 |
| Citation | 102 Miss. 711,59 So. 880 |
| Court | Mississippi Supreme Court |
| Parties | STATE v. BEN WADE, JR |
October 1912
APPEAL from the circuit court of Holmes county, HON. MONROE MCCLURG Judge.
Ben Wade, Jr., was indicted for an attempt to commit rape. From a judgment sustaining a demurrer to the indictment the state appeals.
The facts are fully stated in the opinion of the court.
Reversed and remanded.
Frank Johnston, assistant district attorney, for the state.
The demurrer to this indictment contains two grounds stated in one paragraph of the demurrer. First: The indictment does not allege that the defendant failed to commit a rape on the person of Fannie Sample. Second: That it does not allege that said defendant was prevented from committing said rape on said Fannie Sample. The demurrer was sustained by the court below, and the indictment adjudged insufficient. The case was dismissed.
The indictment, unquestionably, charges that the defendant failed to commit rape, the principal crime, by the charge that he made the assault and battery upon the woman and used violence in so doing in an attempt to commit the main crime of rape.
According to every rule of grammatical and legal construction of the language employed, it appears, in the most unequivocal manner, that he did not commit the main offense, but only made an attempt to commit the offense; and necessarily a charge of attempt to rape involves logically and irresistibly the idea that he did not commit the main offense, but failed to commit the graver offense, and that the only offense involved and charged was the attempt to commit the graver offense of crime.
At common law the attempt to commit a rape was a crime irrespective of any statute. Section 1049 of the Code of 1906 so far as that crime is concerned, is simply declaratory of the common law rule. That statute declares that every person who shall "design and endeavor to commit an offense, and shall do any overt act towards the commission thereof, but who shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall be punished " and here follows the definition of the punishment. The statute contains the term, "but, who shall fail therein or shall be prevented from committing the same." These terms are not such as are required to be placed in an indictment for an attempt to commit an offense, for the reason that it is absolutely immaterial and inconsequential whether the defendant fails in his attempt, coupled with an overt act, to commit an offense, or whether he is prevented from so doing; this manifestly is correct as a fundamental proposition of law, for the reason that the crime of the attempt is complete when the design is formed, and an overt act has been done in pursuance of the commission of the main crime. Therefore, an indictment, giving time, place, and circumstances, and charging a man with an assault and battery upon a woman, with the felonious intention of ravishing her or carnally knowing her, against her will or consent, makes a most complete and accurate exposition of the crime of attempt to rape, and must be regarded as containing all the elements that constitute a good and valid indictment. The mere charge that the action of the defendant began and ended with the attempt to commit the crime, makes out the offense, and that regardless of the reason why he did not succeed in committing the graver offense.
The definition of the crime, by all the authorities, of an attempt, is that there must be a design, coupled with an overt act. In other words, the defendant must take at least one step towards the commission of the design, beyond a mere preparation, and aside from his original design. See 12 Cyc. 177, par. 2, and cases cited in note 97. See also 12 Cyc. 178, and cases cited in note 98.
Again I find the rule in regard to an attempt to commit this offense stated thus:
"It is only necessary, in an attempt to commit this crime that the facts must show that the defendant intended to commit the crime (that is, the main crime), notwithstanding resistance on the part of the woman, and that that intention exists, and the overt act is shown in the attempt to consummate this crime in pursuance of the intention to commit this crime, and that this makes the attempt complete." See 4 Am. & Eng. Ency. of Law, p. 663.
And again the rule is stated to be: "An attempt to do a wrongful act, coupled with an overt act towards its commission, constitutes an attempt which is itself a crime." See Am. & Eng. Ency. of Law (1 Ed.), ...
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