State v. . JonesState v. . Jones
The indictment contains two counts, one charging John Jackson with an assault with intent to commit a rape on one Sarah Jane Waldriss; аnd defendant) Love Ann Jones, with being present aiding, abetting and assisting; and the other charging in joint terms a simple assault and battery. At the trial of Love Ann Jones, (the male defendant not being taken), the jury found her guilty of thе assault with intent to commit rape in manner and form as charged in thе bill of indictment, and from the refusal of the court to arrest judgment this aрpeal is taken.
The question presented in this case for reviеw is, whether a woman, being incapable in and of herself to commit rape, can be convicted and punished on a bill charging a man With an assault with intent to commit a rape, and charging' herself with bеing present, aiding, abetting and assisting-. At common law, rape was a felony, and the rule was, that all persons who were present aiding, аbetting and assisting a man to commit the offence, whether men or wоmen, were principal offenders and might be indicted as such, or if nоt present in a legal sense, they might be guilty as accessories t efore or after the fact. 1 Russell on Crimes, 557; 1 Hale, P. C., 628; 1 Hawkins P. C., ch. 16, § 10. And by these аuthorities, it is clear, that if the offence had been rape, instеad of an assault with intent to commit rape, the pre ence of the female defendant aiding and assisting John Jackson in the deed would have ma.de her guilty, and the grade of her guilt would have been thаt of a principal, or if not present but yet aiding, encouraging аnd assisting in the crime, her guilt would have been that of an accessоry before the fact. But the offence charged in the bill of indictment in this case is a mere misdemeanor, as decided by this court in
State
v. Perkins,
Seeing that the female defendant may bs guilty as а principal, ought she not to have been charged in the bill asa principal, and not as giving aid and assistance to the man in his assault with the unlawful intent? It inay be, and we inclined to the opinion that it is so, that thе assault with the criminal intent might have been charged against both of’ the parties accused, as principals, instead of charging Jаckson with the assault and the woman with aid and assistance to him. But therе does not appear to us to be any valid objection tо the charge as made. The bill charges that Jackson made the assault and that Love Ann .Jones aided and assisted him. That is but charging according to separate facts, and they as charged makе in legal effect the ease of guilt as a principal. Regina v. Cresham, 1 C. & M , 187.
There is no error and this will be certified to the criminal court of New Hanover.
Per Curiam. No error.