Freany v. Washington Territory , 1 Wash. Terr. 71 ( 1859 )

Opinion by

Fitzhugh, Associate Justice.

In this case the defendant in the Court below, who is plaintiff in error, was indicted in the language of the statute, for “ an attempt to commit an assault with intent to perpetrate a rape.”

No motion was made upon the indictment, but the defendant plead “not guilty,” and on trial was convicted of committing an assault with intent to perpetrate a rape.

A motion was made by the defendant to arrest the judgment. The motion was withdrawn, and the defendant sentenced in accordance with the finding of the jury, to two years imprisonment in the penitentiary.

It is unnecessary to express an opinion in regard to the indictment, upon which there is not entire unanimity in the mind of the Court.

But it would be trifling with justice to allow a party having a right to a decision upon the point in question in the Court below, upon his motion in arrest of judgment, to waive that right, and then come here and attempt to avail himself of it in this Court.

We think that the plaintiff in error, after waiving his motion, when he might have pressed it, cannot virtually review it now, before this Court.

The judgment of the Court below is hereby affirmed, with costs. A mandate will issue to the Court below, in accordance herewith.