46 Miss. 501 | Miss. | 1872
The plaintiff in error, having been indicted by the grand jury of the county, charging him with an attempt “to commit a rape upon the person of Martha McNutt, a female over the age of ten years,” was tried and convicted. There was a motion for a new trial and in arrest of judgment, both of which were overruled. The indictment was presented at the December term, 1870, and the trial was had in April, 1871. Having brought the case to this court, the following errors are assigned: 1st. The record does not show that the plaintiff in error was arraigned before his trial; 2d. The record does not show that the defendant was in court during the whole of his'trial; 3d. The action of the court in refusing defendant’s fourth charge; 4th. The record does not show that the jurors and witnesses were sworn; 5th. The record does not show that the indictment was returned into
As to the record, the objections thereto are not well taken, provided the corrections made by the court in its minutes were legal and proper. Reading these, as made, it is shown that the plaintiff in error was arraigned before trial; that he was in court during the whole of his trial; that he was confronted by the witnesses against him ; and, that the indictment was returned into court, as required by the Code. The points involved were made in the court below on the motion in arrest of judgment, and are presented here by the first, second and fifth assignments of error. It appears that the court, during the same term, but subsequent to the trial, amended or corrected its minutes with reference to this cause. This we understand counsel to object to as unauthorized and void, which explains, we presume, the broad language of the fourth assignment. Of the entire control of' the court over its minutes during the term, there is no question. Until the adjournment in course, corrections are not only within the authority but duty of the court, in accordance with the facts, amenable, of course, to the appropriate tribunals for the purity and fidelity of its acts. Upon this branch of the case, it is sufficient to say, that the recitals in the record are ample; but the exceptions thereto are made to depend upon the power of the court to correct its minutes. This being upheld, the objections are unavailing.
The sixth assignment presents for review the questions raised by the motion for a new trial, which were these; 1st. That the jurors and witnesses in said cause were sworn by B. L. Hawkins, who was neither the clerk nor the deputy clerk of the court, and was unauthorized to administer such oaths ; 2d. The refusal of the court to give the instruction to the jury, asked by the accused.
In support of the first point the affidavit of the accused and of E. L. Hawkins are given in the record. The accused states that “the jury who tried him nor the witnesses who testified in his cause, were sworn as the law directs, in this,
“The oath,” says Wharton, “must be solemnly administered ; but it is immaterial in what form it is given, if the party, at the time, professes such form to be binding on his conscience.” Am. Cr. Law, § 2205. It is not necessary to prove the appointment of the officer who administered th« oath, it being only requisite to prove that he performed the duties of a certain office, without showing his appointment. * * * lb., §2272. In an indictment for perjury, the oath said to be false was charged to have been administered in the circuit court by the deputy clerk; it was held, that no proof of the appointment of the deputy clerk was necessary ; that, in administering the oath the deputy clerk acted under the superintendence of the court; and that the oath was as obligatory as if it had been administered by one of the judges. Server v. the State, 2 Blackf. 35. Campbell v. the People, 8 Wend. 636, was an indictment for perjury, and the averment that the oath was administered before, instead of by, a certain tribunal, was held sufficient. The court, in the State v. Norris, 9 N. H. 96, say: “ The term * corporal oath ’ must be considered as applying to any bodily assent to the oath of the witness.” The authorities teach that the solemn administration and bodily assent, rather
In this connection the fourth assignment of error, averring that “ the record does not show that the jurors and witnesses were sworn,” may be considered. We suppose this assignment refers to the point made on the motion for a new trial, and if so, it is already sufficiently answered. But, as a matter of fact, the record recites : 1st. That a jury of good and lawful men were duly “elected, impaneled, tried, sworn and charged2d. The bill of exceptions, prepared by the accused, states substantially that the witnesses were sworn; 8d. The accused and the acting clerk during the trial, testify that the jurors and witnesses were sworn. Ho objection was taken upon the trial to the person who administered or the mode of administering the oath until after the testimony was closed. Upon the facts in this case, no one can be heard to say the jurors and witnesses were not properly and legally sworn. They were sworn, in fact, virtually by the court, and we may presume, in the usual solemn manner, formally accepted by jurors and witnesses ; and that oath, as administered, was binding in conscience and in law.
The alleged errors are not sustained by the authorities upon the facts before us. In Scaggs v. the State, 8 Smedes & Marsh. 722, the record was wholly defective with reference to the presence of the prisoner in court during the trial. The only evidence of his presence at all was contained in a bill of exceptions, where he is stated to have asked some questions of a witness; but for all that appears in the record, these might have been propounded in writing, from
This branch of the case at bar is this: A court of competent jurisdiction ; a person acting as clerk, and not known to be otherwise until after the conclusion of the trial; oaths-to jurors and witnesses solemnly administered and bodily assented to, binding and legal, alike under art. 194, Code, 138, with reference to de facto officers, and upon general principles; oaths to jurors and witnesses in trials being under the superintendence of, and virtually administered by the court, excepting, of course, affidavits and like oaths which the clerk is particularly authorized by statute to
The only remaining question to be considered is presented by the instruction asked for the accused, but refused by the court, viz. : “The state.having averred in the indictment that Martha McNutt, the person upon whom the indictment charges the rape to have been committed, to be over the age of ten years, it is necessary that said averment should be proved, and, if not proved, the jury must find for the defendant.” The theory of this instruction is untenable. Our view of this branch of the case may be briefly stated. The crime of rape is a common law, not a statutory offense, while the reverse is the case as to the abuse of children of tender years. As rape may be committed upon a female of any age, the averment that the injured person is “over the age of ten years” is unnecessary, and not being a constituent of the crime, need not be contained in the indictment, or, if inserted, need not be proved, as the offense is complete without these words. On the contrary, in a prosecution for the violation of a child under ten, the age is material, and must be averred and proved to be within the period prescribed by law. The Code of Miss., art. 218, p. 608, corresponds almost literally with the statutes of several of the states on the’same subject, and, in fact, all are substantially the same, following closely jhe laws of Great Britain with reference to this crime. Neither in the latter country, nor in any of the United States, is it required in an indictment for rape to aver the age of the female to be over ten years, nor, on the other hand, that the accused is over fourteen. These points have been directly adjudicated
The court in Camp v. the State, 3 Kelly, 417, following the common law definition, defines rape to be “the carnal knowledge of a female, forcibly and against her will.” Burr. Law. Dic. citing 4 Bl. Com. 210; 1 Russ, on Crimes, 675. Whart. Am. Cr. Law, §§ 1124, 1156, defines this crime in these words : ‘! The violation or carnal knowledge of a woman forcibly and against her will.” As already stated, a woman of any age maybe the subject of this crime. If the female be under ten, this fact might be a defense upon the trial under an indictment for the substantive offense, but in the latter case, as we have before shown, the prosecution need neither aver nor prove the age. Proof of the carnal knowledge of a female, forcibly and against her will, sustains the charge, and hence the age, even if averred, need not be proved (Swinney v. the State, 8 Smedes and Marsh. 576), because not an ingredient of the crime.
This case is unlike those where an unnecessary averment becomes material, as a description of the person of the accused, the place, or locality of the crime, or the property stolen, as in Dick v. the State, 30 Miss. 631; John v. the State, 24 ib. 569, and the cases therein cited, from which the one at bar is wholly distinguishable. In cases like those, the unnecessary averment having become material, it must be sustained by proof, though in such cases slight proof of those averments is sufficient, while in the case at bar, the age is in no way material, or in any way identified with the crime. In State v. Anderson, 19 Mo. 241, which was the trial of a negro upon an indictment for an attempt to ravish a white female, the jury were permitted to find the color and race of the accused, and the sex of the prosecutrix from seeing these parties on the trial, and proof that the accused was a slave;
The judgment is affirmed..