Hays v. State

| Miss. | Apr 15, 1880

George, C. J.,

delivered the opinion of the court.

The plaintiff in error was indicted for rape, convicted, and sentenced to imprisonment in the Penitentiary for life. It is objected here that the indictment is not sufficient, because the ravishment is not charged to have been done feloniously. The indictmeht charges that the prisoner, “ with force and arms, in and upon one Nelly Edwards, a female over the age of ten years then being, violently and feloniously did make an assault, and her, the said Nelly Edwards, then and there forcibly and against her will, did then and there ravish and carnally know, against the peace, etc.”

The objection that the word “ feloniously ” should have been repeated in connection with “ ravish ” seems to be clearly sustained by the authorities, if we consider that the indictment is to be treated as charging the common-law offence. The Attorney General, however, insists that the offence of rape is fully defined by the statute (Code 1871, § 2672); and that this indictment is good under that section, which is in the following words: “ Every person who shall be convicted of rape, either by carnally and unlawfully knowing a female child under the age of ten years, or by forcibly ravishing any female of the age of ten years and upwards, shall be punished,” etc. But we do not consider that the statute was intended to define fully and clearly the offence, but rather to impose a punishment for rape. The case comes under the rule laid down in Jesse v. The State, 28 Miss. 100" court="Miss." date_filed="1854-10-15" href="https://app.midpage.ai/document/jesse-v-state-8256776?utm_source=webapp" opinion_id="8256776">28 Miss. 100: “ If the words used in the statute do not, in view of the nature of the offence and the recognized principles of law, describe the offence so as to convey to the mind a full and clear idea of every thing necessary to constitute the crime, in such case the full measure of the offence must be charged by the use of such words as are necessary and proper, under established rules of law, to characterize it.”

One of the assignments of error is, that the court erred in refusing a new trial, which, as the indictment is defective for the principal offence attempted to be charged in it, though good for a mere assault, we will sustain, without inquiring specially into the grounds upon which it is based, so that the cause may be remanded, either for a new trial for the assault in the indictment as it now stands, or that the court may quash the indictment, and that a new one may be found properly framed for the trial of the crime of rape.

Judgment accordingly.