(after stating the facts as above):
There is no exception to the evidence and none to the charge. After verdict the defendant moved in arrest of judgment on the ground thаt the words “with intent” were left out of the indictment. He cannot say that he has been in the slightest degree misled or prejudiced in his defence therеby. If he had thought the indictment ambiguous as to the offence with which he was charged, he should have moved to quash for the informality and the solicitоr would doubtless have accommodated him by sending a new bill. But he understood the chax-ge perfectly by asking instruction upon the offence of assault with intent to.commit rape, which was given; he heard the Judge’s charge fully and explicitly upon that offence and made no exception thereto. He sat in the dock and heard the overwhelming evidence that he had assaulted .the prosecutrix with intent to commit rape *1035 upon her, and made no exception that he was not charged in the indictment with that offence; he heard his admissions of guilt given in evidenсe and his statement that if the witnesses had been five or six minutes later he would have succeeded,— a crime which would have put a halter аround his neck; he offered no evidence to contradict the evidence given of his acts and of his admission of guilt.
There could not be fоund a case more strongly justifying the wisdom of the statute (Code, Section 1183) which ‘forbids judgment to be arrested “by reason of any informality or refinement.” In
State
v. Moses,
The defendant earnestly insists that the omission of the words “with intent” are fatal and that though in fact he did understand with what offence he was charged, hе ought not to be taken to have comprehended it. The words “feloniously,” “burglariously” and “malice aforethought” have been held indispensable because they have no synonyms and their place cannot be supplied, and hence are “sacramental words,” as they hаve been styled.
State
v. Arnold,
We do nоt, however, approve of the departure here made from the customary form of words used for charging this offence, though we hold thаt it does not vitiate the bill. It is passing strange that any prosecuting officer should by negligence or inadvertence depart, *1038 especiаlly in so important a case, from the forms so long used, and run the risk of a grave miscarriage of justice and the throwing a heavy hill of cost upоn the public by such carelessness. The accustomed and approved forms are accessible and should be followed by solicitоrs, till (as with murder, perjury and in some other instances) they are modified and simplified by statute. The Code, Section 1183, was enacted to prevent miscarriages of justice, but not to encourage prosecuting officers to try experiments with new forms, or to excuse them from the duty of ascеrtaining and following those which have been approved by long user or by statute. The object of the statute in disregarding refinements and informalitiеs is to secure trials upon the merits, and solicitors will best serve that end by observing approved forms so as not to raise unnecessary questiоns as to what are refinements and informalities and what are indispensable allegation's.
There is only one count in the indictment, and it is unnecessary to notice the authorities cited as to general verdicts rendered on a bill charging offences punishable differently.
While the statute (Acts 1885, Chapter 68) permits a verdict for an assault when it is embraced in the charge of a greater offence, as rape or other felony, a verdict simply of guilty and not specifying a lower offence is a verdict of guilty of the offence charged in the indictment. No error.