Green v. State

1 Morr. St. Cas. 574 | Miss. | 1872

Smith, C. J.:

This was an indictment for an attempt, by plaintiff in error, who is a slave, to commit a rape upon a free white woman. It was tried in the circuit court of Pike county, when verdict and judgment were rendered against the prisoner.

A motion for a new trial was entered in the circuit court and overruled. To the decision overruling the motion, a bill of exceptions was filed; by which means the whole of the evidence adduced on the trial was placed on the record.

Several exceptions to the validity of the judgment are pressed upon our consideration. But from the view we have taken of the case, we deem it necessary to notice only the objections to the indictment, and the decision overruling the motion for a new trial.

1. It is objected that this indictment is defective for duplicity; that the prisoner is charged with two distinct offenses in the same count; it is also contended that the indictment is void for uncertainty. If the count is not double, there is no pretence for the charge of uncertainty.

The offense charged in the indictment is described in the following terms, namely, that the prisoner “ with force and arms, in the county aforesaid, in and upon one Eliza Conerly, (being then and there a free white woman,) feloniously did make an assault on her, the said Eliza Conerly, then and there feloni-ously did attempt to ravish and carnally know, by force and against her will, and in said attempt did forcibly choke and throw down the said Eliza Conerly,” etc.

It must be perceived by a bare inspection that there are not two distinct and separate offenses charged herein. The last allegation, which is made the point of attach, is evidently no more than a description, somewhat more minute, of the manner of the assault, before averred to have been made. By no rule of construction can this allegation be held to charge an assault and battery distinct from the previously alleged attempt at rape. For if separated from this allegation, it conveys no meaning whatever, as it stands in the indictment, it forms no part of the description of the offense, and was with propriety treated as sur-plusage by the court. 1 Ch. Cr. L., 173, 232.

2. In passing upon the exception to the decision on the motion for a new trial, we shall not examine the evidence in reference to the guilt or innocence of the prisoner, but solely in regard to venue.

As we have before said, the whole of the evidence is certified in the record. And after a careful examination, we find no proof that the offense of which the prisoner was convicted, was perpetrated in the county of Marion as alleged in the indictment.

This proof was essential. 1 Ph. Ev. 515; 3 ib. 703, n. 381. The prosecution, from inability or inadvertence, having failed to produce it, the finding of the jury and the judgment of the court were void.

Let the judgment be reversed, the cause remanded, and a new trial awarded in the circuit court.