Wright v. State
| Decision Date | 31 July 1843 |
| Citation | 23 Tenn. 194 |
| Parties | WRIGHT v. THE STATE. |
| Court | Tennessee Supreme Court |
Wright was indicted in the circuit court of Knox county, at the October term, 1842. The indictment contained two counts. The first for a rape committed on the body of Tabitha Webb, on the 15th day of August, 1842, in the county of Knox; the second for having on the same day, in said county, had carnal knowledge of said Tabitha Webb, she being a female child under the age of ten years.
The defendant pleaded not guilty, and issue thereupon was submitted to a jury at the January term, 1843, Scott, judge, presiding.
It appeared that the defendant had gone to the house of the mother of Tabitha Webb after dark, in the county of Knox, and that the mother sent her daughter, Tabitha, who was over ten years of age, after water, and that Wright went with her, to which she made no objection. There were some circumstances going to show that she was willing to go with him, and was willing to receive his dalliance; but her screams when violence was attempted, the bruises on her body, and her efforts to escape the assault of the prisoner, left no doubt of her unwillingness to assent to the desires of the defendant. These facts, together with the acknowledgment of the defendant, left no doubt of his guilt. There was proof introduced to show that the mother was a prostitute, etc.
The judge charged the jury that it was no difference if the person abused consented through fear, or that she was a common prostitute, or that she assented after the fact, or that she was taken at first with her own consent, if she was afterwards forced against her will.
The jury returned a verdict of guilty on the first count, and not guilty on the second. A motion for a new trial was made and overruled.
The defendant, by his attorney, Swan, then moved in arrest of judgment, and assigned the following as the ground of his motion:
“The indictment joins offences differing in their nature, circumstances, and name, constituting different and distinct felonies.
The first court charges that the defendant, in and upon one Tabitha Webb, spinster, violently, feloniously, and unlawfully, did make an assault, and her the said Tabitha Webb, then and there unlawfully and feloniously did ravish and carnally know, contrary to the form of the statute in such case made and provided.
The second count charges that the defendant, in and upon one Tabitha Webb, spinster, a female child, under the age of ten years, etc., unlawfully, and feloniously did make an assault, and her the said Tabitha Webb, then and there wickedly, unlawfully, and feloniously did carnally known and abuse, contrary to the form of the statute, etc.; differing from the charge in the first count, in nature, circumstance, and name, and constituting a separate and distinct charge.”
This motion was overruled, and defendant appealed in error.
Swan, for plaintiff in error.
Attorney General, for the State.
At the February term, 1843, of the circuit court of Knox county the prisoner, Andrew J. Wright, was put upon his trial on a bill of indictment containing two counts, one of which charged him with the offence of rape, committed upon the body of Tabitha Webb; the other with the offence of having had carnal knowledge of Tabitha Webb, she being under age of ten years. The jury found him guilty on the first, and not guilty on the second, and sentenced him to ten years' imprisonment in the jail and penitentiary of the State; and judgment was given accordingly. And a writ of error is thereupon prosecuted to this court.
We are glad to be freed from the necessity of entering into an investigation of the disgusting details of this offence, as exhibited in the bill of exceptions, as it is not insisted that a new trial ought to be granted upon the facts proven to the jury; but several legal objections are taken to the proceedings on the trial, which it is contended vitiate the verdict, and for which the judgment should be reversed. We will examine them as they arise in the argument of the prisoner's counsel.
1st. The court was asked to compel the attorney general to elect upon which count of the indictment he would put the prisoner upon trial,...
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...Tenn. 614; Kelly v. State, 66 Tenn. 84; Ayrs v. State, 45 Tenn. 26, 28; State v. Lea, 41 Tenn. 175; Cash v. State, 29 Tenn. 111; Wright v. State, 23 Tenn. 194. In Galbreath v. State, 187 Tenn. 669, 216 S.W.2d 689, Supra, the Court said: 'The insertion of several counts charging kindred offe......
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