20 N.C. 98 | N.C. | 1838
after stating the case as above proceeded as follows: — The instruction prayed on behalf of the prisoner does not specify on which of the two issues he demanded a verdict in his favour. From the nature” of the instruction, and referring to the evidence to which it relates, it would seem to be necessarily confined to the plea to the fe-
The first is, that the record set forth in the plea, of autre-fois acquit, sustains that plea, the identity of the persons and transactions being assumed, and that is not disputed here.
In the first indictment, the prisoner was charged in, one count, with a felonious assault and committing a rapé — of which he was acquitted; and in the second count, with an assault, with intent to commit a rape, of which he was found guilty: but no judgment was pronounced thereon, because for the want of the word felonice, the offence was a misdemeanor, and of that the Superior Court had not jurisdiction! The prisoners counsel rests his case on the verdict and judgment given on the first count, and claims to confine' our attention to that part of the former proceedings, denying an operation, for any purpose, to the other part of the proceedings.
If indeed it w,ere true, that upon an indictment for a rape, the jury might find the accused not guilty of the rape, but guilty of an assault with intent to commit a rape, and consequently, that a general acquittal upon such an indictment, would be a bar to a subsequent prosecution for, specifically, an assault with that intent, the Court would yet not be prepared, in this case to admit without much hesitancy, the conclusion necessary to the prisoner. The reason would not seem applicable to an indictment with two counts, in which the two grades of offence, and the facts necessary to constitute them are separately charged as distinct crimes, and the verdict expressly discriminates between them ; finding the prisoner guilty of the assault, as charged in one count; but not of the rape, as charged in the other. It would seem to be the duty of the Court to make the verdict consistent with itself if possible. Perhaps it might there
The position of the counsel upon this point is, therefore, in opposition to the judgment of this Court upon the very case of this prisoner, when it was before us on the first indictment. (See ante, 2 vol. p. 297.) The judgment of acquittal on the first count, was then affirmed; and the judgment was arrested on the second count because that was regarded as charging a distinct offence, which was not charged in the former, or of which the prisoner could not be convicted on that count. But as the validity of the verdict in this respect was not then discussed, nor even adverted to at the b^r, nor by ourselves, the Court will now proceed to enquire whether the prisoner was before acquitted of the crime, of which the present indictment accuses him. This will be done inde-pendantly of the authority of the adjudication of ourselves, just alluded to, and also, with reference only to that part of the first verdict which acquitted the prisoner on- the first count of that indictment, and without noticing the fact, that the indictment contains more than that count.
The affirmative is asserted for the prisoner, because it is said that he might have been convicted of the assault on that count. In the opinion of the Court that is the legal criterion. The nature of the evidence does not seem to be an infallible test. It is true, to use the words of Mr. Justice Buller, “ if crimes are so distinct that evidence of the •one will not support ” (a charge of) “ the other, it is as incon
Thus, although an assault with intent to murder, and an assault with intent to maim or disfigure are different offences, and evidence to sustain an accusation of the latter, would not establish the former, yet it was held in Coke and Woodburn’s case, that an attack with intent to murder, with an instrument which could not but endanger the disfiguring would, where death did not ensue, authorise a verdict, under the Coventry act, that the prisoners were guilty of an assault with intent to disfigure. If the intent was only to maim, evidence of that intention would not prove an intent to murder — which is a distinct and further intent requiring further evidence. Of consequence an acquittal upon an indictment for an assault with either intent would not bar a subsequent one for an assault with the other intent. Yet we find, as to the proof, that evidence of the intent to murder involves the
The principle thus deduced, seems to the Court to be de-. cisive against the plea of the prisoner. The comparison of the present indictment with the first count in the former indictment displays at once such marked differences between them as to render it palpable, that the frame of neither would admit of a conviction on it of the offence charged in the other. The facts contained in the first indictment fall short, in some essential respects, of those indisputably requisite to constitute the crime in the second indictment. So likewise of the facts laid in the second indictment, if true throughout, they would not make up ■ the crime specified in the first indictment.
First, both the crime of rape, and that of an assault with intent to commit a rape, are felonies created by statute. But they owe their existence to different statutes; the former to the statute of Westminster, 2nd, and the latter, to the statute of this state of 1823. (See 1 Rev. stat. c. 111, sec. 78.) The conclusion of an indictment under each must be contra formara statuti.; and the first count of the former indictment did so conclude. Now admitting that upon that count, the jury might have acquitted the prisoner of a rape, and convicted him of an assault with intent to commit a rape, if this last had been a common law felony, yet we think it certain that he could not be so convicted of that of-fence when made a felony by another statute. - The reason upon which a reference to the statute is held necessary at all, is in direct opposition to such a conviction. The object is to inform the accused and the Court of the particular law-under which the indictment is formed ; and to prevent sur-prisé on either the Court or the accused, very nice distinct
Secondly. There are other ingredients in the offence created by the act of 1823, which were not charged in the first indictment, and without the existence of which, apparent on the record, the prisoner could not be convicted under that act. Rape is a capita] felony, if committed by any person, white or black; and accordingly the first count charged it in that general form, without describing the prisoner as a person of colour, or the woman as h white woman. It is not so with respect to an assault with intent to commit a rape. That is a capital felony only where the actor is a person of color, and the subject a white female. As those facts were not necessary to constitute the rape, and wrere not charged in the first count of the former indictment the prisoner could not have been convicted on that indictment, of the assault.
But independant of these two particular objections, a complete answer to the plea is furnished, thirdly, by the more general principle before adverted to, that an indictment for doing a criminal act, is not supported by proof of an intent to do that act, although the intention to perpetrate, and the perpetration be each a crime, and of the same grade. To this position, the case of Vandercomb v. Abbot, is a direct authority; as> it is also to the consequence necessarily deducible from it, that an acquittal upon an indictment charging the doing of an act, is not a bar to an indictment charging the intent to do it.
In the more recent case of Rex v. Furnival, Russ. and
The Court, for each of the foregoing reasons is of opinion that the first plea of the prisoner is bad, and that he might be properly convicted on the other issue, if sufficiently proved on the part of the state.
It has however been contended for the prisoner, that he was entitled to a verdict on his plea of not guilty, because the evidence, if proper to be received, proved a substantial and distinct felony — namely a rape, and consequently disproved the felony charged — namely an assault with intent to commit a rape. For the support of this position, Hornwood’s case, 1 East P. C. 411, 440, is relied on. But we think that case' proceeds on a different reason. It establishes that upon an indictment for an assault with intent to commit a rape, if the proof be, of a rape actually committed, the prisoner must, in England be acquitted. But the reason is, that such an assault is, in the law of that country a misdemeanor only; and it cannot exist where a felony has been actually committed, but is merged in the felony. It does not proceed on the ground that evidence of the intent consummáted disproves the intent itself; but on the contrary, that the intent is established in both cases, and that when it is executed the act and the intent together, constitute a different and a
The preceeding observations serve also to answer, in a great measure, another and the last objection of the prisoner’s Counsel, that is, that if the former acquittal cannot be pleaded technically as a bar to this indictment, yet that the A ** ' . State is estopped by it as evidence, from proving, for any purpose, that the prisoner was guilty of a rape. The Court is not aware of any mode of taking advantage of the estop-pel created by a former trial, but pleading it as an acquittal or conviction for the same offence. But if there were, the same reasons which avoid the bar as a plea, must necessarily repel the objection of a former trial set up as an estoppel upon the evidence. Nor is it seen what benefit the prisoner would derive if we could allow the record of the former acquittal to be as evidence, an estoppel to other evidence on
It is admitted, as a result from these positions, that the prisoner may practically, be indicted for two felonies, and his guilt proved of one, upon the same evidence on which he received an acquittal on. the other, from which inconveniences and hardships may arise. But it is a consequence of the circumstance, that the two felonies are of such a nature, that the existence of one, may in fact be inferred from the existence of the other; while in law, the felonies themselves are so distinct and essentially different, as alleged in the indictment, that an acquittal or conviction of one cannot bar a prosecution for the other. This it is beyond the power of the Court to correct, since, in passing upon plea of former acquittal, the Court is
Having been unable to sustain any of the objections on behalf of the prisoner, and not perceiving any error in the record, the Court is obliged to affirm the judgment of the Superior, Court.
Per Curiam. Judgment affirmed.