State v. Bill

8 Rob. 527

Opinion

Nicholls, J.

The accused was tried and convicted before the judge of the parish of Jefferson and six freeholders, on an ac-‘ cusation of an attempt to commit a rape upon the person of a child

Footnotes

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* aged about six years ; from which conviction an appeal has been taken to this court, based on an exception to the judge’s charge to the jury.

The judge charged the jury, that the term rape, in the Black Code, should be construed according to its common acceptation among- men ; and had bis charge here stopped, it might not probably have been critically and technically correct; but all possible objection was removed by his subsequent explanation of what constituted the crime, in his declaration “ that if the evidence satisfied them that the prisoner had attempted to have carnal intercourse with the child, (though under ten years of age,) it was their duty to find the prisoner guilty.” Thus explained, the charge was proper.

in the act of 23 January, 1805, it is provided, that every person who shall hereafter be duly convicted of any manner of rape, &c. This phraseology was evidently intended to cover, not only the crime of rape, as technically defined by the common law of England, (the unlawful carnal knowledge of a woman, by force and against her will,) but likewise the crime when committed upon the persons of children under ten years, created by the statute of the 18th Elizabeth, which latter crime, though strictly not a rape, was equally atrocious, and one to which we frequently find the best English writers have attached the name of rape. Thus, in 1 East, 44, he designates the crime committed on the person of a child of seven years old, as a rape. There being, therefore, but one kind of rape known to the common law; and the lawmaker, using the words any kind of rape, must be presumed to have intended to include all that class of cases, which, in common parlance, were called rape.

But, whatever doubt might be entertained with regard to a white man, it appears to this court that there can be none where a slave is the party accused. In Bul. & Cur. Dig., 59, (Black Code,) it is enacted, that if any slave, free negro, mulatto, Indian or mustee, &o„ shall commit or attempt to commit a rape upon the body of any white woman or girl, &c. The term girl is a generic term, and embraces female children of all ages, both over and under ten years. Such is the signification of the word girl given by the best lexicographers. Walker defines the word girl, a young woman or child ; Webster, a female child or young woman ; and finally, in the new and enlarged dictionary, .compiled ' from South, Johnson, Murray, Cobbett, &c., a female child is the signification given to the word girl. In addition, we find in the French text, which is equally the law with the English, the words used are viole une personne blanche, (a white person,) making no distinction as to age. Ubi lex non distinguit, non debemus distinguere.

The judgment of the inferior court, must, therefore, be affirmed; subject, however, to a modification, which originates in the impossibility of carrying the judgment into execution, on the day designated therein for the execution of the culprit.

Wherefore, it is ordered and decreed that the judgment of the court, a qua, be affirmed, except so far as it orders the execution to take place on the nineteenth instant; and the said court is hereby required to convene for the purpose of designating such time as may seem to it meet and proper, for said execution.

The child was white.