Witherby v. State , 39 Ala. 702 ( 1866 )

JUDGE, J.

Section 8307 of tbe Code, under wbicb the prisoner was convicted and sentenced, is as follows: “Every slave, or free negro, who commits, or attempts to commit, a rape on any white female, must, on conviction, suffer death.” The indictment charges, that the prisoner, “Henry With-erby, (a freedman,) assaulted Mary Stuart, a white child under the age of ten years, with the intent to ravish her.” The “only distinction between an intent and an attempt to do a thing, is that the former implies the purpose only, while the latter implies both the purpose and an actual effort to carry that purpose into execution.” — Prince v. The State, 35 Ala. 367. Therefore, a mere intent to commit a particular offense, does not involve an attempt to do it. But an “assault with intent to commit a rape,” is, of itself, an attempt to commit the offense. — The State v. Bullock, 13 Ala. 413. It would be impossible for the former to exist without the latter; yet, an attempt, meaning in the largest signification of the word a trial or effort to do a particular thing, may be made to commit a rape by a “free negro” on a white female, and the offense be complete, within the meaning of section 3307 of the Code, without the commission of an assault. — Lewis (a slave) v. The State, 35 Ala. 380. It is unnecessary, in framing an indictment under this section of the Code, to aver an assault; but if averred, being descriptive of the offense, it must be proved. We therefore hold the indictment sufficient to authorize a conviction for the offense as charged.

. [2.] The prisoner being a freedman, section 3307 of the Code was applicable to his case; (Eliza v. The State, and George v. The State, at the present term;) and the punishment imposed by that section, was properly pronounced by the court.

It follows, that the court did not err in overruling the motion in arrest of judgment; and upon a careful examination of the record, we can find no error in the proceedings of the court below. The judgment is consequently affirmed, and the sentence of the law must be executed