State v. WilliamsState v. Williams
- Reporters:
- Before:
- Spencer
The opinion of the court was delivered by
Spencer, J.The defendant was indicted, tried, and convicted as a principal, in thе second degree, in the crime of rape. The indictment •charges in substance “that a certain person,” to the jurors unknown, “ with force аnd arms, in the parish of Orleans, etc., in and upon one Helen Monaghan feloniously and violently did make an assault, and her, the said Helen Monaghan, then violently and against her will, feloniously did ravish and carnally know ; and ¡thе grand jurors, etc., further present that one Caroline Williams, etc., with force and arms, etc., feloniously was present, aiding, abetting, and assisting the said person, etc., the felony aforesaid to do and commit, cоntrary to the form of the statute, etc.”
From a judgment sentencing her to imprisonment for life, defendant appeals.
*336Her counsel relies upon the following points for reversal of the sentence:
First. That the charge against the principal in the first degree does not contаin the‘essential words “ by force,” or “words equally significant; ” that the word “ violently ” is not synonymous with or the equivalent of “ forcibly,” and does not, therefore, aptly express the idea of the law in its definition of rape, which is defined to be “ having unlawful and carnal knowledge of a woman forcibly and against her will.” Bláckstone, b. 4, p. 210.
Second. That the charge against the principal in the first degree should have been that his act was against the form of the statute, etc.”
Third. That it should judiсially appear from the face of the indictment that the unknown principal was a male capable of committing rape..
The two last-named objections have, we think, little force in them. The charge is that an unknown person did commit the crime of rape. IE so, then the inference is inevitable that the person was capable of so dоing.
If there was any force in the second objection, it comes too late in a motion in arrest. It is a formal defect (if defect it is), aрparent on the-face of the indictment, and should have been urgеd by demurrer or-motion to quash, before trial. R. S. 1064.
The first point presents morе difficulty. It is true that where an indictment charges one as present, aiding, and assisting another in the-commission of a felony, the charge against the principal in the first degree should be in form and substance sufficient to mаintain his conviction.
The only question as to its sufficiency in the present сase arises out-of the use of the word “ violently ” in place of “ forcibly ” or “ by force.”’
It is not claimed that the indictment must follow, ipsissimis verbis,. the language of the common-law definitions. But, it is clаimed, and justly, we think, that where these words are not used their substitutes must be synonymous оr equivalent, and apt for the expression of’ the legal idea involved in the definition.
This precise question, i. e. the use of “violently” in place • of’ “ forcibly,” in charging rape, was presented in the case of “ the State of Maine vs. Black,” reported in 39 Maine, 322. The Supreme Court of that State in that case held that the word “violently ” was not an equivalent of “ forcibly,” and did not convey with technical accuracy the idea of’ force, as involved in the crime of rape. We are not able to agree with that court in its conclusions on this question of philology. Webster defines “violence” as, in its primary sense, meaning “physical force,”’ and “ violently” he defines as signifying “ with force,”’ “forcibly. ”
*337We think, therefore, that where it is сharged that the person unknown did “ violently and against her will feloniously ravish and carnally know ” Helen Monaghan, the words do convey aptly the idеa that the act was done “ by force ” or “ forcibly.” The tendency of modern jurisprudence is to relax the strict technical rules of the common law, and to look rather to substance than form, to ideas rather than words.
We think there is no error in the judgment appealed from, and it is •affirmed.
Rehearing refused.,