Wyatt v. State

• Decision Date: 31 December 1852
• Citation: Wyatt v. State, 32 Tenn. 394 (Tenn. 1852)
• Parties: WYATT, a Slave, v. THE STATE.
• Court: Tennessee Supreme Court

32 Tenn. 394

WYATT, a Slave,

v.THE STATE.

Supreme Court of Tennessee.

December Term, 1852.

The prisoner was convicted at the February term, 1852, of the circuit court of Dickson county, Pepper, judge, presiding, and sentence of death pronounced upon him; whereupon he appealed in error.

N. H. Allen and Houston, for the prisoner.

Attorney-General, for the State, said: Although I have been unable to find, in any of the books, the reason of the distinction which is made between the perpetration of the offence of rape when committed by force, and the same moral offence when committed by fraudulent deception of the female, yet the cases in which the question has been made are all against the statement of the circuit judge in this instance. 1 Russ. on Cr. 677; Roscoe's Cr. Ev. 798; Jackson's Case, Russ. & Ry. 487; Field's Case, 4 Leigh, 648; Saunders' Case, 34 Eng. C. L. R. 383; and Williams' Case, Id. 392. In Roscoe on Ev. 798, note 1, it is said: “It seems that it is as much a rape when effected thus, by stratagem, as by force.” To support this, reference is made to 1 Wheeler's Criminal Cases, 378, 381, note; and also to Fields' Case, in 4 Leigh (above cited). The latter case is at variance with the note in Roscoe.

Caruthers, J., delivered the opinion of the court.

This is an indictment for burglary, in the circuit court of Dickson county. The first count charges an intent to commit larceny; the second, to commit a rape upon the body of Mrs. Catherine Frances Evans, a free white woman; and the third, an assault with intent to commit rape upon Mrs. Evans.

It was proved that the prisoner forced the door of the dwelling-house of the prosecutor, in which he and his wife were sleeping, about eleven or twelve o'clock at night; that he approached the bed in which they were sleeping, and put his hand upon her, which aroused her from sleep, and she gave the alarm, when the prisoner fled; the prosecutor pursuing him with his dogs and gun, until he overtook, shot, and disabled him.

The error alleged, and relied upon for a new trial, is in that part of the judge's charge to the jury which is in these words: “If the jury believe that the defendant attempted, either by force, or by fraudulently inducing the prosecutor's wife to believe that it was her husband, and thereby to have carnal knowledge of her, that then they ought to find him guilty.”

The jury find a general verdict of guilty. They make no reference in their verdict to the separate counts; nor are they informed in the charge that they would have a right to find separately, and differently, on the several counts. We cannot know, therefore, whether they would have found a verdict of guilty, or not guilty, on the first count. If that had been the verdict, it would not have been material whether the above charge on the other counts was correct or not. We cannot therefore, know but that the general conviction was based on the second or third counts. If that were so, it becomes vitally materially to decide whether the law is correctly laid down in the part of the charge above extracted. We agree with the attorney-general that the moral turpitude of the crime would be as great, when perpetrated by fraud and deception, as by force. If we had the power to make the law on that subject, we would not hesitate to have it as charged by his honor the circuit judge; and we doubt not but that the Legislature will so enact, whenever the case is brought to their attention. In the black catalogue of crimes there is none which so shocks all men as the one under consideration; none should be more severely punished. But we cannot permit even a slave to be punished without the full benefit of the law as it is, either under the influence of popular feeling, or our own abhorrence at his acts. The question with us should ever be, not what the offence deserves, nor what our feelings and individual opinions would dictate, but “what sayeth the law.”

We need not now go back into the books of the common law for a definition of felonies; they are given in our penitentiary code, act of 1829, ch. 23. It declares, sec. 19, that “burglary is the breaking and entering into a mansion-house by night, with intent to commit a felony.” Sec. 13: “Rape is the unlawful carnal knowledge of a woman, forcibly, and against her will.” Sec. 53: “Any assault and battery upon any female, with intent forcibly, and against her will, to have unlawful...