State v. . Barnes

29 S.E. 381, 122 N.C. 1031, 1898 N.C. LEXIS 392

• Court: Supreme Court of North Carolina
• Decided: March 22, 1898
• Status: Published

Opinion

Clark, J.,

(after stating the facts as above):

There is no exception to the evidence and none to the charge. After verdict the defendant moved in arrest of judgment on the ground that the words “with intent” were left out of the indictment. He cannot say that he has been in the slightest degree misled or prejudiced in his defence thereby. If he had thought the indictment ambiguous as to the offence with which he was charged, he should have moved to quash for the informality and the solicitor would doubtless have accommodated him by sending a new bill. But he understood the chax-ge perfectly by asking instruction upon the offence of assault with intent to.commit rape, which was given; he heard the Judge’s charge fully and explicitly upon that offence and made no exception thereto. He sat in the dock and heard the overwhelming evidence that he had assaulted .the prosecutrix with intent to commit rape upon her, and made no exception that he was not charged in the indictment with that offence; he heard his admissions of guilt given in evidence and his statement that if the witnesses had been five or six minutes later he would have succeeded,— a crime which would have put a halter around his neck; he offered no evidence to contradict the evidence given of his acts and of his admission of guilt.

There could not be found a case more strongly justifying the wisdom of the statute (Code, Section 1183) which ‘forbids judgment to be arrested “by reason of any informality or refinement.” In State v. Moses, 13 N. C., 452 (at page 464) Judge Ruffin says of this statute: “This law was certainly designed to. uphold the execution of public justice by freeing the courts from those fetters of form, technicality and refinement which do not concern the substance of the charge and the proof to support it. Many sages of the law had before called nice objections of this sort a disease of the law and a reproach to the bench, and lamented that they were bound down to strict and precise precédence. ... We think the legislature meant to disallow the whole of them and only require the substance', that is a direct averment of those facts and circumstances which constitute the crime to be set forth.” In State v. Smith, 63 N. C., 234, the court say: “The Act of 1811, (now Code Section 1183) has the almost universal approval of the bench and bar. It needs no higher endorsement than that of the late Chief Justice Ruffin in State v. Moses, (cited supra) .... The Act has received a very liberal construction and its efficacy has reached and healed numerous defects in the substance as- well as the form of indictments. ... It is evident that the courts have looked with no favor on technical objections, and the legislature has been moving in the same direction. The current is all one way, sweeping off by degrees ‘infor-malities and refinements’ until indeed a plain, intelligible and explicit charge is all that is now required.” That this was a plain and intelligible charge is shown by the fact that the defendant did understand it as a charge for an assault with intent to commit rape, he heard evidence given to prove that charge, and the court instructed upon it, without objection, and himself asked an instruction upon that offence, which was given. He was tried for that offence and he made no objection. In State v. Parker, 81 N. C., 531, Ashe, J., says: “Ever since 1811, it has been the evident tendency of our courts as well as our law-makers to strip criminal actions of the many refinements and useless technicalities with which they have been fettered by the common law. the adherence to which often resulted in obstruction of justice and the escape of malefactors from merited punishment.” To same purport are numerous other cases, some of which are cited and reviewed in State v. Hester at this term.

The defendant earnestly insists that the omission of the words “with intent” are fatal and that though in fact he did understand with what offence he was charged, he ought not to be taken to have comprehended it. The words “feloniously,” “burglariously” and “malice aforethought” have been held indispensable because they have no synonyms and their place cannot be supplied, and hence are “sacramental words,” as they have been styled. State v. Arnold, 107 N. C., 861. It. is not so with the words “with intent” in an indictment for an assault with intent to commit rape, (State v. Tom, 47 N. C., 414,) in which it is said that other words (in that case the word “intention” was used) are sufficient if they make the charge of a felonious assault “with the design or purpose to commit a rape.” In the present case the allegation is that the defendant “unlawfully and feloniously” assaulted Oora Yarboro, “then and there forcibly, violently and against her will then and there feloniously to abuse, ravish and carnally know.” It would be the height of “refinement” to say that this does not charge that he assaulted her with intent to rape her. To say that “A feloniously assaulted B to kill him” means that he made the assault with intent to kill him. So here, the charge that the defendant “feloniously assaulted” the prosecutrix “forcibly and violently and against her will then and there feloniously to abuse, ravish and carnally know” means, and can mean, only one thing- — that he assaulted her with intent to ravish her. State v. Martin, 14 N. C., 329 holds that a charge of an attempt to ravish is not sufficient because attempt is not the synonym of intent. This is approved in State v. Goldston, 103 N. C., 323 on the ground that allegation of an attempt is the allegation of an act which may be evidence of intent but is not an allegation itself of intent. That decision, however, further says that the word “intent” is not indispensable, other words may suffice, and those used in the present case fully express the charge of an assault with the purpose, intent or design to ravish. In State v. Powell, 106 N. C., 635, relied on by the defendant, the material words “forcibly and against her will” were omitted and “no words of equivalent import were used.”

We do not, however, approve of the departure here made from the customary form of words used for charging this offence, though we hold that it does not vitiate the bill. It is passing strange that any prosecuting officer should by negligence or inadvertence depart, especially in so important a case, from the forms so long used, and run the risk of a grave miscarriage of justice and the throwing a heavy hill of cost upon the public by such carelessness. The accustomed and approved forms are accessible and should be followed by solicitors, till (as with murder, perjury and in some other instances) they are modified and simplified by statute. The Code, Section 1183, was enacted to prevent miscarriages of justice, but not to encourage prosecuting officers to try experiments with new forms, or to excuse them from the duty of ascertaining and following those which have been approved by long user or by statute. The object of the statute in disregarding refinements and informalities is to secure trials upon the merits, and solicitors will best serve that end by observing approved forms so as not to raise unnecessary questions as to what are refinements and informalities and what are indispensable allegation's.

There is only one count in the indictment, and it is unnecessary to notice the authorities cited as to general verdicts rendered on a bill charging offences punishable differently.

While the statute (Acts 1885, Chapter 68) permits a verdict for an assault when it is embraced in the charge of a greater offence, as rape or other felony, a verdict simply of guilty and not specifying a lower offence is a verdict of guilty of the offence charged in the indictment. No error.

Eaircloth, C. J., dissents.