| Minn. | Dec 15, 1861
By the Court —
— The indictment in this case charges that the Defendant on, &e., “ in this county of Wright
On the trial the jury found the Defendant “not guilty of the rape, but guilty of an assault with intent to commit a rape,” and the Court thereupon sentenced him to ten years imprisonment in the penitentiary.
The Defendant claims that this indictment is insufficient in this, that it does not charge an assault, without which he could not be convicted of the offence of which he was found guilty, in that it does not charge that he ravished “ forcibly and against the will” of said Barbara; in that it does not allege the crime to have been committed at any place within the jurisdiction of the Court, and because it does not conclude “against the form of the statute.” He also insists that the sentence is for a term not warranted by the statute, which prescribes the punishment for the offence of which he was convicted.
The statute upon which the indictment was founded is as follows :
“ If any person shall ravish and carnally know any female of the age of ten years or more, by force and against her will, he shall be punished by imprisonment in the Territorial [State] prison not more than thirty years nor less than ten years ; but if the female on trial shall be proven to have been at the time of the offence a common prostitute, he may be imprisoned not more than one year.” Comp. Stat., 706, sec. 38.
The form of indictment for rape, suggested by the statute, states the charge thus :
“ Forcibly ravished C D, a woman of the age of ten years and upwards.” And the statute further provides that it shall be sufficient to follow substantially the forms prescribed.
It is observable that this form omits the assault; and notwithstanding the' statute prescribing the punishment uses the word, “ and carnally know by force and against her will,” these words also are omitted. The reason these words, or their equivalents were not deemed essential, was because they are all included or embraced in the word “ ravish ” or rav*285 ished, which is the essential word in all indictments for rape. It imports not only force and violence on the part of the'man, but resistance on the part of the woman. When therefore it is charged that A. B. feloniously ravished O. B., it is but a repetition to add that he carnally knew her forcibly and against her will.
The form of the indictment at common law charged that the Defendant therein, “in and upon one 0. D. feloniously and violently did make an assault, and her, the said C. D., then violently and against her will feloniously did ravish and carnally know.” But even at common law, where the greatest particularity was required, it was long since held that an indictment omitting the assault was not defective ; and that the words “feloniously'did ravish” were sufficient without the words “ carnally know,” and “ forcibly and against her will.”
We think that so far as this objection is concerned, this indictment is not only good under the statute, as substantially following the form prescribed, but that it would have been sufficient at common law also. ' It is far stronger than the statutory form, because it charges the act to have been done “feloniously,” while the form uses the word “forcibly” instead. The former includes the latter, and is a much more appropriate term, but as the statutory form does not make use of it, it cannot be deemed essential.
As to the objection that no place is named within the jurisdiction of the Court where the crime was committed, we think the allegation that the acts were.done in the county, is all that is necessary. It is not necessary to state the particular place within the county.
The crime of rape is a crime at common law, and the indictment therefore need not conclude contra formam statuti. The statute does not define the crime, but prescribes the punishment.
The right of the jury to convict of an assault with intent to commit a rape, although the indictment is for a rape only, is clearly given by the Statute, (Comp. Stat., 783, sec. 20,) which provides that “upon an indictment for any offence the jury may find the Defendant not guilty of the commission thereof, and guilty of an attempt 'to commit the same.” It is
The punishment for assault ing a female with intent to commit the crime of rape, as prescribed by sec. 40 on page 706 of the Comp. is imprisonment in the .penitentiary for a term not more than ten years nor less than one year. But as section 44 of the same chapter provides that “if any person shall assault another with intent to commit any burglary, robbery, rape, * * * or other felony, the punishment of which assault is not herein [in ibis chapter] prescribed, [he] shall be punished by imprisonment, &c., not more than three years nor less than six months, or by fíne, &c.,” the Defendant insists that the punishment prescribed by said section 44 must govern, because it is the last in numerical order, according to the rule of construction laid down by the statute. Comp. Stat., 117, sec. 20.
The rule to which we are thus referred expressly provides, however, that it need not be followed if such construction be inconsistent with the meaning of the chapter. And we think it would be entirely inconsistent with the meaning of the chapter in which the sections above recited occur, to hold that a section which is expressly directed to the punishment of a particular offence, should be' rendered null by a mere implication, because a subsequent section, which is general in its character and intended to cover or provide against omissions, happens to mention the same offence in general terms. Besides, this subsequent section expressly excepts those assaults, the punishment for which has been therein [in said chapter] prescribed; and we have seen that section 40 prescribes the punishment for an assault with intent to commit a rape. We hold that the section which refers alone to the punishment of this particular crime is. the one that should govern, and as the sentence is within the limits of the discretion, therein given to the' Court, it is not excessive or unauthorized.
We have been unable to discover error in this record, and we must accordingly ■ affirm the judgment of the District Court.