Opinion
(June Term, 1844.)
1. Where an indictment for a rape charged that the defendant, "with force and arms, etc., in and upon one Mary Ann Taylor, in the peace of the State, etc., violently and feloniously did make an assault, and her, the said Mary Ann Taylor, then and there, violently and against her will, feloniously did ravish and carnally know," the court can and must see with certainty that Mary Ann Taylor was a female.
2. It is not necessary, in an indictment for a rape, to state the female ravished was of the age of 10 years.
3. If she be under the age of 10, then that fact should be averred, because abusing such a female is made felony by the statute, whether she assented to the act or not.
APPEAL from Bailey, J., at Spring Term, 1844, of BERTIE.
Attorney General for the State.
No counsel for defendant.
The defendant was tried and convicted upon the following indictment, viz.:
NORTH CAROLINA — Bertie County — ss. Superior Court of Law, Spring Term, 1844.
The jurors for the State, upon their oaths, present: That Jesse Farmer, late of Bertie County, laborer, on 4 March, 1844, with (225) force and arms, in said county, in and upon one Mary Ann Taylor, in the peace of the State then and there being, violently and feloniously, did make an assault, and her, the said Mary Ann Taylor, then and there, violently and against her will, feloniously did ravish and carnally know, against the form of the statute in such cases made and provided, and against the peace and dignity of the State."
The jury having found the defendant guilty, he moved in arrest of judgment — first, because the bill of indictment did not charge that Mary Ann Taylor was a female, and therefore it was defective; secondly, it was defective because it did not charge that Mary Ann Taylor was a female of the age of 10 years.
The motion was overruled and sentence of death passed upon the defendant. From this judgment he prayed an appeal to the Supreme Court, which was granted, without security, it appearing to the satisfaction of the court, by affidavit made by the said defendant, that he was unable to give security.
This was an indictment for a rape. The first ground taken by the prisoner in arrest of judgment, to-wit, "That the bill of indictment does not charge that Mary Ann Taylor is a female," was, we think, properly overruled by the court. This question came up before us in S. v. Terry, 20 N.C. 289, where we decided that the word "her," used in the indictment, disclosed with sufficient certainty that the person stated therein to have been ravished was a female. This indictment charges that the prisoner "did make an assault, and her, the said Mary Ann Taylor, then and there, violently and against her will, feloniously did ravish and carnally know." From the language used, the court can and must see with certainty that Mary Ann Taylor is a (226) female. The form of this indictment is agreeable to the one set forth in Archbold C. L., 372. The second ground taken by the prisoner in arrest of judgment was that the indictment does not charge that Mary Ann Taylor was a female of the age of 10 years or more. This objection, we think, was properly overruled by the court. An indictment for rape never states the age of the female that has been ravished. If, indeed, she be under the age of 10 years, then it is averred in the indictment, because (by force of the statute) abusing such a female is made felony, whether she assented to the act or not.
We have attentively examined the whole of the record in this case, and we are unable to discover any defect in it.
PER CURIAM. No error.
Cited: S. v. Johnson, 100 N.C. 496.