State v. . ScottState v. . Scott
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Thе defendant having been convicted оn an indictment, charging him with an assault upon one Julia Pittman with intent to commit rape, moved in arrest of judgment for alleged defects in the bill of indictment. It is only necessary tо notice one of the alleged dеfects as that is fatal to the bill.
“ That the indictment should have charged the assault, with intent, &c., feloniously to ravish and carnally know.” Whereas the word feloniously is omitted whеre it is necessary to characterize the act of ravishing.
It is true the assault is charged to have been violently and feloniously made; but this essential word, feloniously, which cannot‘be supрlied by any paraphrasis, is omitted in the imрortant place where it is necessary to characterize the crime.
An assault may be made, not only with the intent tо commit rape, but other felonies; murdеr for instance; hence we cannоt refer the word feloniously to the crime, when it is only used to qualify the assault.
Mr. Archbold gives the following form of an indictment for assault with intent to commit а rape :
“ That, &c , in and upon one A. N. in the рeace of God and our lady the Queen then and there being, did make an assault and her the said A. U. did then and there beat, wоund and ill treat, with intent her the said A. IN. violently and аgainst her will feloniously to ravish and carnally know,” &c. And Bishop, in his work on Criminal Procedure, at sec. 560, in commenting on this form says, “ Therе is no reason to suppose that in аn indictment for this form of the attempt to commit a rape, it is necessary to sрecify the particulars of the assault. But the allegation of the intent should be such as to show that the offence intendеd to be committed would amount in law to rape. Therefore, where the indictment charged an assault ; *463 then added, “ with intent to ravish and carnally know the said Margarеt Bolen,” setting out also a battery; it was held to be insufficient. The Court observed: This is a gоod indictment for assault and battery but nothing more.”
This is our case, with the exceptiоn that the indictment here does not set out a battery.
In State v. Johnson, 67 N. C. 55, where the words “ forcibly,” “ violently” “ and against her will,” arе commented upon and explainеd, the point wras, that the indictment did not chаrge that the prisoner did forcibly and feloniously rаvish, but that he did “feloniously ravish,” omitting the word forсibly, but inserting the words “ against her will.”
There the indictment was held to be good because the word “ feloniously,” as well as the words “ against her will ” characterized the act.
The motion in arrest of judgment is allowed. This will be certified, &c.
Per CüRiam. Judgment arrested.