Opinion
(June Term, 1832.)
In an indictment under the Act of 1823 (Tay. Rev., ch. 1229), "declaring the punishment of persons of color in certain cases," it is necessary to charge that the assault was made with an intent to commit a rape. An allegation that the defendant feloniously attempted to ravish is insufficient.
THE prisoner was tried on the last circuit, at HYDE, before his Honor, Martin, J., upon the following indictment:
Attorney-General for the State.
No counsel for prisoner.
"The jurors for the State, upon their oath present, that Martin, a slave, etc., not having, etc., but being moved, etc., on, etc., with force arms at, etc., in and upon one S. H., a white female, in the peace, etc., violently and feloniously did make an assault, and her the said S. H. forcibly and against the will of her the said S. H. then and there did feloniously attempt to ravish and carnally known; against the form, etc."
After a verdict for the prosecution, his Honor arrested the judgment, and Mr. Solicitor Miller, on behalf of the State, appealed.
The Attorney-General admits in the argument that the guilty will with which the assault was made is a necessary allegation in the indictment. But it is contended that it is sufficiently expressed by "then and there feloniously did attempt to ravish," following the charge of the assault. The statute makes it a capital felony for any person of color to make an assault with intent to commit a rape upon the body of a white female. Though in some minor offenses the guilty will (which in all cases is necessary to constitute a crime) is implied from the wrongful overt act, and therefore need not be stated in the indictment; and in other cases the allegation of such criminal purpose, though required in the frame of the indictment, is formal so far as respects the finding of that purpose as a fact by the jury, because the law would prima facie infer it from the act of which it prompted the perpetration; yet generally, even at common law, the intent constituting an act a capital crime must be precisely and specifically alleged. This (330) rule is exemplified by the words of art, felonice, burglariter, and the like. Much more is that the case when the indictment is founded on a statute. The terms used by the statute are then necessary in the indictment, not only to denote the disposition of the accused, but also to describe and identify the crime as that for which the particular punishment is prescribed. This may be a good reason why courts should not allow the sufficiency of any other epithet, though equipollent in common parlance. The term willful, for example, is indispensable in an indictment for perjury under the statute of Elizabeth, and cannot be supplied by any other. It is a safe rule, therefore, to follow the words of the statute, and because it is safe, the courts have adopted it. If one departure be allowed, it cannot be told how far astray it may lead us. But independent of that consideration, it is the duty of the court to require all pleadings to be expressed in terms as brief and apt as possible. There can be none to denote the intent more apt than that word intent itself. It is the language of the common law, of statutes, of pleading. It is perfectly understood, and ought to be retained. It is said by Lord Ellenborough, in Rex v. Phillips, 6 East, 472, to be the proper word to convey the specific allegation of intent. It is found in all the precedents within our reach, and there is no other term so expressive and precise. Here the word attempt has been used in its stead. We should be justified in rejecting it upon the sole ground that it is not the word of the statute. But it is not even synonymous. Intent referred to an act denotes a state of the mind with which the act is done. Attempt is expressive rather of a moving towards doing the thing than of the purpose itself. An attempt is an overt act itself. An assault is an "attempt to strike," and is very different from a mere intent to strike. The statute makes a particular intent, evinced by a particular act, the crime. That purpose and that act cannot be so well nor sufficiently described as by the words of the statute itself.
PER CURIAM. Judgment affirmed.
Cited: S. v. Ormond, 18 N.C. 120; S. v. Tom, 47 N.C. 416; S. v. Noblett, ibid., 432; S. v. Goldston, 103 N.C. 325; S. v. Barnes, 122 N.C. 1037.
(331)