Bevers v. State

78 S.W. 748, 72 Ark. 129, 1904 Ark. LEXIS 89

• Court: Supreme Court of Arkansas
• Decided: January 9, 1904
• Status: Published

Opinion

Riddick, J.

(after stating the facts). The only question raised bjr this proceeding is the sufficiency of the indictment to support the judgment. The facts alleged in the indictment show that, if the defendant had succeeded in carrying- into effect the intent with which he made the assault, he would have been guilty of the crime of rape. It is then clearly sufficient as a common-law indictment for the crime of an attempt to commit rape, for it alleges all the elements that go to make such a crime at common law. But our statute in reference to this crime provides that “whoever, shall feloniously, willfully and with malice aforethought assault any person with intent to commit a rape * * * shall on conviction thereof be imprisoned in the penitentiary not less than three nor more than twenty-one years.” Sand. & H. Dig., § 1866. By reason of this statute counsel for appellant contend that the indictment should have alleged that the assault was made with “malice aforethought.” In this respect the statute is peculiar, but we are of the opinion that the indictment is sufficient without such an allegation. It lis well settled in this state that'an indictment for rape includes also an assault with intent to commit rape. Pratt v. State, 51 Ark. 167; Davis v. State, 45 Ark. 467. “Every attempt to commit a felony against a person,” said this court in an early case, “involves an assault. Prove an attempt to commit such felony, and prove it to have been done under such circumstances that, had the attempt succeeded, the defendant might have been convicted of the felony, and the party may be convicted of an assault with intent to commit such felony.” McBride v. State, 7 Ark. 374. Now there is nothing in our statute that requires that indictments for the crime of rape shall allege that the assault or the act was committed with malice aforethought. Malice is not one of the elements that go to make the crime of rape, and it is unnecessary to allege or prove it to make out the crime, either under our statute or at common law. Warner v. State, 54 Ark. 660.

If it is not necessary to allege or prove malice in order to make out the completed crime of rape, we see no reason why it should be required to prove it in order to convict of the attempt to commit rape — an offense which is included in the greater offense, as one. of its parts. Keeping in mind, then, that an allegation of malice is not required in an indictment for rape, it will be seen that the decision of this court holding that the crime of assault with intent to commit rape is included in every valid indictment for the crime of rape, and that under an indictment for rape the defendant may be convicted either of rape or of an assault with intent to rape, necessarily leads to the conclusion that an allegation of malice aforethought is not essential to a valid indictment for an assault with the intent to commit rape.

Counsel for defendant contends, further, that if this be true the crime must be treated as a misdemeanor only, for the reason that at the common law all indictable attempts, whether to commit felonies or misdemeanors, were only misdemeanors, but that would result in making a difference in the crime and the punishment therefor turn simply on the form of the indictment.

We are of the opinion that the indictment would be sufficient whether it followed the common law or the statutory form, but in either case the punishment is regulated -by the statute. Finding no error, the judgment is affirmed.