State v. . Powell

11 S.E. 191, 106 N.C. 635

• Court: Supreme Court of North Carolina
• Decided: February 5, 1890
• Status: Published

Opinion

Shepherd, J.:

1. The testimony of Laura Shines was admissible for the purpose of corroborating the prosecutrix and her brother, both of whom had been previously examined. It was, however, competent only for that purpose, and it was the duty of the Court to instruct the jury that it was in this view only that they could consider it. Burton v. Railroad, 84 N. C., 192: State v. Ballard, 79 N. C., 627.

There is nothing in the record to show that his Honor failed to perform this duty, and we cannot assume that he did not give the proper instructions. It is well settled that when a party complains of error, it is his duty to make it appear to the Court. Eveiy presumption is in favor of the correctness and regularity of judicial proceedings. The charge was not excepted to, and is therefore not set out in the record. There is absolutely nothing to show what his Honor did or did not charge

The exceptions as to the admission of testimony are overruled.

2. The exception to the remarks of the Solicitor, in his address to the jury, is also untenable. The remarks were not objected to, nor was the Court requested to give any instruction in regard to them. State v. Suggs, 89 N. C., 527.

3. The defendant moves in arrest of judgment, because the indictment does not sufficiently charge an assault with intent to commit rape. The indictment charges the intent as follows: “With intent her, the said Jessie Shines, then and there feloniously and unlawfully carnally to know and abuse.”

We think it clear, in view of our authorities, that the indictment is defective and cannot be sustained, even under the liberal rules of construction contained in The Code, § 1183.

In State v. Jim, 1 Dev., 142, the bill charged that the assault was with intent to “ravish and carnally know,” yet the Court held that the omission of the words “forcibly and against the will” was fatal, and that the words “feloniously ravished” would not supply the defect. This ruling is upheld in State v. Johnson, 67 N. C., 55, where it is said by Reade, J., “that there is no doubt that the indictment must charge the act to be done forcibly, * * * and although ‘ravished’ would seem to imply force, yet it is necessary to charge force expressly in some appropriate language.” In State v. Smith, 12 Ohio, 466, the indictment was very similar to the one before us. It charged “ that the defendant with force and arms, and upon one Desire Franks, did unlawfully and feloniously make an assault with intent unlawfully and feloniously lo carnally know and abuse -the said Desire Franks,” &c. The Court said that “ it is not averred in either Court that the assault was made with the intent to have carnal knowledge of said Desire Franks, forcibly and against her will, nor are there any other words of equivalent import employed. For aught that is alleged, she may have consented to all that was done or attempted by the accused, and such must be the construction of the indictment in the absence of such averment.” In our case there is a total absence of any 'words indicating that the intent was to be executed violently or against the will of the prosecutrix.

Considering the authorities, we are constrained to hold that the assault, with intent to commit rape, is not properly charged, and that the judgment should be arrested.

Judgment arrested.