State v. Wade

| Miss. | Oct 15, 1912

Smith, C. J.,

delivered the opinion of the court.

This is an appeal by the state from a judgment sustaining a demurrer to an indictment charging appellee with an attempt to commit the crime of rape. The indictment alleged “ . . . that Ben Wade, Jr., in said county, on the 13th day of March, A. D. 1912, did unlawfully and designedly, with actual violence, make an assault upon the body of one Fannie Sample, a female, and said Ben Wade, Jr., therein did then and there lay hold of the body of the said Fannie Sample, and her, the said Fannie Sample, did then and there throw her, said Fannie Sample, upon the bed of said Fannie Sample, then and there situate, with the felonious intent, design, and endeavor her, the said Fannie Sample, violently, knowingly, forcibly, and against her will feloniously to ravish and carnally know, against the peace and' dignity of the state of Mississippi.” The ground of the demurrer is that the “indictment does not allege that the defendant failed to commit rape on the person of said Fannie Sample, nor that said defendant was prevented from committing said rape on said Fannie Sample.”

Section 1049 of the Code provides that “every person who shall design and endeavor to commit an offense, and síiall do any overt act towards the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof,” etc. This definition of an attempt to commit a crime is the same as at common law, and since at common law it is not necessary to allege that the defendant failed to commit, or was prevented from committing, the crime attempted (Bishop’s Directions and Forms [2 Ed.], secs. 100 to 112, inclusive, and 910 and 911), we see no reason why it should be necessary to so allege under the statute. In order to charge an attempt to commit a crime, it is only necessary to allege an attempt so to do, coupled with an act toward it, falling short of the thing intended.

Reversed and remanded.