Gouglemann v. People , 3 Park. Cr. 15 ( 1855 )

By the Court, Mitchell, J.

The plaintiff in error was tried at the general sessions, and found “ guilty of an assault with intent to commit a rape above charged, in the form aforesaid, as by the indictment is above alleged against him.” He was condemned to imprisonment in the state prison for four years and ten months. The indictment alleges that he willfully and feloniously made an assault upon one Virginia Lyons, and with her, by force and with violence, and against her will and consent, then and there had carnal connection and sexual intercourse. It does not use the word “ ravish,” and for this omission the writ of error is brought. The verdict is for an attempt to commit such a rape as is alleged in the indictment, and the sentence is on the supposition that the indictment contains all that is necessary on a charge of rape.

The elementary works all hold that the word “ ravish” is essential in an indictment, and that no circumlocution can supply its place, and that in this it is like the word “ murder.” Hale says (Pleas of the Crown, 628) the essential words in an indictment of rape are “ rapuit ct camaliter cognovit/’ but camaliter cognovit, nor any other circumlocution, without the word rapuit, are not sufficient, in a legal sense, to express rape. He refers to the Year Books (9 Edw. IV., 26, a); there the indictment alleged that the defendant feloniously took a woman and her then and there carnally knew, against her will, &c. The majority of the judges held this insufficient, and compared it to the case of murder, in which the indictment must contain that word.

Foster (Crown Law, 423, 4, Appendix), referring to this case, and to the diversity of opinion among the judges, says: “ Broke, who abridgeth the case,. concurs with the judges, who thought the indictment insufficientand he adds, “ and this opinion is holden to be good law to this dayand further adds := “ So, if the indictment chargeth that the defendant, voluntarily and feloniously, and of malice aforethought, hilled (interfecit), without saying imurdravit,' which is the word the statute useth, it amounts to no more than an indictment for manslaughter, and the offender shall have his clergy. So, in the case of buggary it was never thought sufficient to charge that the defendant in quemdam A. B- insultum fecit, et cum eo felonice, contra naturam rem veneream haíuit, ipsum que A. B. camaliter cognovit,” which sufficiently describes the offence to a common intendment; but because the statute describes the offence by the term “ buggery,” the indictment goes on and charges “ peccatum illud sodomiticum, Anglice dictum ‘ buggery.’ ”

Hawkins says (2 Pleas of the Crown, ch. 23, § 77): “Ho periphrasis or circumlocution whatever will supply a want of these words of art which the law hath appropriated for the description of the offence, from whence it follows that an appeal of death cannot amount to a charge of murder without the word murdravit, let it never be so exact and particular in setting forth the malice and all other circumstances of the killing; neither can an appeal of rape be sufficient without the word ‘rapuii,' nor an appeal of larceny without the word ‘ cepit,' nor an appeal of mayhem without the word ‘ mayhemavit.’ ” (Id., ch. 25, § 110.) To the same effect are Barbour's Criminal Law (pp. 73, 332, 3); 3 Chitty's Criminal Law (p. 812); 1 Russell on Crimes (p. 686); and in Harmon v. Commonwealth (12 Serg. & Rawle, 69), while the court held that the words “ against the will” were unnecessary after verdict, the indictment alleging that the defendant did ravish and carnally know, they quoted as authority the expressions of opinion above stated.

The chancellor seems to refer to these cases of murder, rape, mayhem and larceny, in which Hawkins says the law has appropriated certain terms of art which no circumlocution can supply, in The People v. Enoch (13 Wend., 172, 3), where, after stating that when an offence is created by statute which was not an offence at common law, as a general rule the indictment must charge the offence to have been committed under the circumstances and with the intent mentioned in the statute, he goes on to say: “ But even in that case it is not necessary to pursue the exact words of the statute creating the offence, provided other words are used in the indictment which are equivalent, or words of more extensive signification, and which necessarily include the words used in the statute; as when advisedly is substituted for knowingly, or maliciously for willfully, and the like.” Then he adds, to show the limit to this laxity in pleading: “ It is otherwise in indictments for common law offences, where the law has adopted certain technical expressions to define the offence, or to indicate the intention with which it was committed, in which cases the crime must be described, or the intention must be expressed, by the technical terms prescribed and no other. Thus, in an indictment for murder, the terms “ murder of his malice aforethought are considered absolutely necessaiy in describing the offence; and if these words are left out of the indictment it will be considered a case of manslaughter.’ ’

The chancellor uses the case of murder as an illustration only, and does not confine the strict rule to that case alone, and his language is so similar to that of Hawkins, as above quoted, that it is plain he referred to the same instances to which Hawkins did, when he said that “no circumlocution whatever will supply the want of these words of art which the law hath appropriated for the description of the offence,” and instances the word “ ravish ” as one, as well as the word “ murder.”

By all the authorities the term “ murder ” is essential in an indictment for that offence, and the term “ ravish ” in an indictment for the last offence; and the court has no more right to dispense with it in the last case than in the first. The common law made the word in the last case the word of art essential to its description, and the statute prescribing the punishment for the offence uses the same word of art, but the indictment omits it. Our statute curing certain omissions in indictments (3 R. S., 738, §52) does not make any intendment in favor of an indictment after verdict that could not be made on demurrer. The distinction noticed by the chancellor and by Hawkins reconciles these authorities above quoted with what is said in Biggs v. The People (8 Wend., 547), and in The People v. Phelps (5 Wend., 1): these last were not for offences to which the law had applied certain peculiar words of art.

The sentence is for a felony, the offence a misdemeanor, and the sentence should be accordingly, or the sentence should be according to the legal acceptation of the offence found.

There should be a new trial at the general sessions.

Judgment reversed.