Wilson v. State

| Tenn. | Jun 20, 1899

MoAltster, J.

The plaintiff in error was convicted in the Circuit Court of Gibson County of an assault with intent to commit rape and his punishment fixed by the jury at confinement in the State penitentiary for a term of ten years. Motions for a new trial and in arrest of judgment having been overruled, the prisoner appealed. The indictment upon which the prisoner was tried and convicted is, viz.: “That Matthew Wilson, late pf said county, laborer, heretofore, to wit, on the 20th day of April, 1898, in the county of Gibson aforesaid, then and there unlawfully and feloniously an assault did _ make in and upon the body "of one Willie Porter, a female, and her the said Matthew Wilson did illtreat, with the intent ■ then and there feloniously, forcibly, and -against the will of said Willie Porter, to have unlawful carnal knowledge of her, the said Willie Porter, against the peace and. dignity of the State. W. W. Wade, Attorney-general.”

The trial Judge instructed the jury that the indictment was based upon Sec. 54-69 of Shannon’s Code, viz.: “Any person guilty of committing an assault and battery upon any female, with an intent forcibly and against her will to have unlawful carnal knowledge of her, shall, on conviction, be imprisoned in tbe penitentiary not less than ten nor more than twenty-one years.”

It is insisted on behalf of the plaintiff in error that the charge of the Court was erroneous, and the conviction cannot be sustained, for the reason that no battery is charged. “Where a statute prescribes or implies the form of the indictment, it is usually sufficient to describe the offense in the words of the statute, and for this purpose it is essential that these words should be used. In such cases the defendant must be specially brought within all of the material words of the statute, and nothing can be taken by intendment.” Whar. on Criminal P. & P., Sec. 220. “Where the offense is statutory, the indictment should follow the statute. To the extent that the statute defines the offense, • not less is admissible. The indictment must charge the defendant with all of thé acts within the statutory definition.” Bishop New Criminal Procedure, Vol. 1, Sec. 611, Subsec. 2; Sec. 612, Sub-secs. 1, 2, and 3; Harrison v. State, 2 Cold., 234; State v. Ladd, 2 Swan, 226; Morrow v. State, 10 Hum., 120; Whitesides v. State, 4 Cold., 182. “Where the statute requires a battery to constitute the offense, it must be averred in the indictment.” Bishop on Crim. Pro., Vol. 2, Sec. 77, Subsec. 3; Rhodes v. State, 1 Cold., 349.

.It is ’ insisted, however, on behalf of the State, that the word “illtreat” employed in the indictment is a word of similar import,' and implies violence. We do not think the use of this term sufficient. Mr. Bishop, in his work on Directions and Forms, speaking of the words equivalent to charge the word “battery,” gives the word “beat” as being sufficient. He says: “ 'beat,’ ‘bruise,’ ‘wound,’ and ‘illtreat’ have, in most circumstances, from early times been commonly employed. I presume ‘beat’ alone will suffice, though - I have before me no authorities to the point. ‘Illtreat’ is, in reason, too indefinite to be of any effect, ' nor is there apparently any propriety • in continuing its use.” Sec. 206, note 4.

We are therefore of opinion the Circuit Judge was in error in instructing the jury that the prisoner might be convicted under the statute already quoted. The verdict of the jury is. not sustainable under Sec. 6411 Shannon’s Code, for the reason the punishment fixed is in excess of the maximum punishment prescribed by that Act. McDougal v. State, 5 Bax., 660.

It is unnecessary to notice other assignments of error in respect of matters which will probably not occur on another trial, but for the reason given the judgment is reversed and the cause remanded.