Citation Numbers: 74 S.E. 356, 158 N.C. 627, 1912 N.C. LEXIS 103
Judges: BrowN
Filed Date: 3/27/1912
Status: Precedential
Modified Date: 10/19/2024
Indictment for an assault with intent to commit rape. The defendant was convicted and sentenced. In apt time he moved in arrest of judgment for insufficiency of the bill of indictment, which read as follows:
STATE OF NORTH CAROLINA — BRUNSWICK COUNTY.
In the Superior Court, October Term, A.D. 1911.
The jurors for the State, upon their oaths, present, That I. A. Hewett, late of the county of Brunswick, on the 20th day of July, 1911, with force and arms, at and in the county aforesaid, unlawfully, willfully, and feloniously did assault, beat, and wound one Lundie Bozeman, and her the said Lundie Bozeman did feloniously then and there attempt to ravish and carnally know, forcibly and against her will, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State. SINCLAIR, Solicitor.
Motion overruled; defendant appealed.
The facts are sufficiently stated in the opinion of the Court by Mr.Justice Brown. The bill is in the usual form, but omits the words (628) "with intent." After charging a felonious assault upon Lundie Bozeman, the bill concludes: "and her the said Lundie Bozeman did *Page 526 feloniously then and there attempt to ravish and carnally know, forcibly and against her will," etc.
There are two decisions of this Court which sustain the contention of the defendant, S. v. Martin,
In the bill in this case the felonious assault is specially charged and that this assault was made in an attempt to commit rape.
The basis of the decision in Martin's case is that an attempt to do a thing is expressive of the overt act of moving towards its accomplishment, rather than of the purpose or intent itself. We cannot appreciate the distinction. It is too subtile.
We are unable to see how a man can commit a felonious assault upon a female, and attempt to ravish her, without intending it. The words used in the bill, ex vi termini, necessarily import an (629) intent to commit rape, and are amply sufficient to give the defendant full notice of the crime with which he stands charged, and that is the chief purpose of a bill of indictment.
An "attempt," in criminal jurisprudence, is an effort to accomplish a crime, amounting to more than mere preparation or planning for it, and which if not prevented, would have resulted in the full consummation of the act attempted.
Mr. Bishop defines an attempt as "an intent to do a particular criminal thing, combined with an act which falls short of the thing intended." 1 Bishop Crim. Law, sec. 728. It is defined by others as an endeavor to commit an offense, carried beyond mere preparation to commit it, but falling short of actual commission." Burrill on Circ. Ev., 365; Burrill Law Dict., 175; Bouvier's Law Dict., 205. *Page 527
In Regina v. Collins, L. C., 471, 9 Cox C. C., 497, it is defined "as that which, if not prevented, would have resulted in the full consummation of the act attempted." Rex v. Higgins, 2 East, 20; Robinson's Elementary Law, sec. 472.
Thus we see that practically all definitions of an attempt to commit a crime, when applied to the particular crime of rape, necessarily imply and include "an intent" to commit it.
There may be offenses when in their application to them there is a distinction between "attempt" and "intent," but that cannot be true as applied to the crime of rape. There is no such criminal offense as an "attempt to commit rape." It is embraced and covered by the offense of "an assault with intent to commit rape," and punished as such.
As held by the Supreme Court of California, one cannot be indicted for an attempt to commit a crime where the crime attempted is in its very nature an attempt. People v. Thomas,
Affirmed.
(630)
State v. . Overcash , 226 N.C. 632 ( 1946 )
State v. Rick , 54 N.C. App. 104 ( 1981 )
State v. Martin , 17 N.C. App. 317 ( 1973 )
Moody v. Lovell , 145 Me. 328 ( 1950 )
People v. Jones , 443 Mich. 88 ( 1993 )
State v. Currence , 14 N.C. App. 263 ( 1972 )
State v. Barksdale , 181 N.C. App. 302 ( 2007 )
State v. Green , 246 N.C. 717 ( 1957 )
State v. . Edwards , 224 N.C. 527 ( 1944 )
State v. . Adams , 214 N.C. 501 ( 1938 )