#### STATE v. PEAK.

(Filed June 10, 1902.)

RAPE — Indictment—The Code, Secs. 1101, 1102.

An indictment for an assault with intent to commit rape need not contain the word “forcibly.”

Douglas and Cook, J.J., dissenting.

INDICTMENT against Henry Peak, heard by Judge W, B. Gouncil and,a jury, at Spring Term, 1902, of the Superior Court of Pole County. From a verdict of guilty and judgment thereon, the defendant appealed. -

Robert D. Gilmer, Attorney-General, for the State. Solomon Gallert, for the defendant.

CdabK/ J.

The indictment charges that the defendant, “with force and arms, at and in the county aforesaid, unlawfully, wilfully and feloniously, did commit an assault upon the body of Mary Mooney, with intent her, the said Mary Mooney, unlawfully and wilfully and feloniously to rape, against'the will of said Mary Mooney,” etc. There was no motion to quash, nor exception to evidence or charge, but, *712.after a, verdict of guilty, tbe judgment was arrested' on motion of defendant because of tbe omission of tbe word “for'ci-bly.”

In any possible aspect, tbis is error, and tbe case must go back for judgment. Tbis is unquestionably a good bill for assault, and tbe verdict is always imputed to tbe matter correctly charged. State v. Toole, 106 N. C., 736, and authorities there cited.

If, when tbe case goes back for judgment, tbe Court shall impose sentence for tbe aggravated assault, “with intent to rape,” then an appeal by 'defendant would present tbe ques'tion whether tbe bill authorizes such punishment, and any discussion of that question now is, to some extent, hypothetical and obiter dictum.

But, as tbe matter has been discussed, it is perhaps proper to say that the omission, of tbe word “forcibly,” in view of tbe context, is not fatal,” certainly not a liter verdict; and tbis is a good bill for assault with intent to commit rape, both at common law and by statute.

“On an'indictment for an assault with intent to commit an offense, tbe same particularity is not necessary as is required in an indictment for. tbe commission of the offense itself,” says Dr. Wharton. 1 Wharton Ob. Law (9th Ed.), Sec. 644; Lacafield v. State, 34 Ark., 275. An indictment for an assault with intent need not specify the facts necessary to constitute that offense which was intended to be, but was not, in fact, perpetrated. * *' * S'o, in an indictment for breaking into a dwelling-house with intent to commit rape, tbe crime of rape need not be fully and technically charged.

Wharton Cr. Pl. and Pr. (9th Ed.), Sec. 159, and cases cited in notes to above paragraphs; Commissioners v. Doherty, 10 Cush., 52; Singer v. People, 13 Hun., 418; Ibid., 75 N. Y., 608. These cases are from courts of the highest character, are explicit and clear in their reasoning, and cite other authorities.

*713At common law, as tbe above citations establish, the bill was good. Our own statutes and decisions are to the same purport. The Code, Sec. 1101, defines rape as the “ravishing and carnally knowing any female of the age of tern years or more by force and against her will.” In indictments for that offense, under our decisions, while the word “forcibly” need not be used, its equivalent and that the act was against the will of the female must be charged. State v. Johnson, 67 N. C., 55. Section 1102 prescribes the punishment for “assault with intent to commit rape.” A pleader who uses the words of the statute is safe. Here, the charge, following the statute, is a sufficient one for assault “with intent to commit rape.” We have had an analagous case at this term. Code, See. 995, makes the breaking into a dwelling-house of another, “with intent to commit a felony,” burglary; .and Section 996 makes the breaking into a dwelling-house not burg-lariously, or the breaking, into a house not a dwelling, or •dwelling if uninhabited, “with intent to commit a felony,” a crime. Under both these sections, it has been held sufficient to allege the breaking properly, and add merely “with intent to commit larceny,” without alleging anything more, such as to feloniously take and carry away certain goods., to-wit * * * the property of A — in short, following the common law rule, as above, that an indictment for assault to commit an offense need not technically charge the offense intended to be committed. This is clearly and distinctly held in State v. Tytus, 98 N. C., 705 ; State v. Christmas, 101 N. C., 749, and was reaffirmed in State v. Ellsworth, at this term. If, therefore, this had been an indictment for breaking into a house (whether dwelling or not) and the breaking were sufficiently charged, it would be sufficient to add merely “with intent to commit rape” or “to commit larceny;” and it follows that if an assault is sufficiently charged, it is sufficient to add merely “with intent to commit murder” (see many precedents cited *714by Wharton, supra), or simply “with intent to commit rape,” as the others cited by him from New. York and Massachusetts, supra.j hold. They are Courts of high repute.

Besides, an objection that the ofíense intended to be committed is not sufficiently charged “comes too late after verdict.” State v. Christmas, 101 N. C., 749, and cases there cited. As the constituent elements of the offense intended to be committed were not perpetrated and can no be proved, why, as the decisions says, charge rnjoré than an intent to murder, toi steal, or to rape.

Then, there is The Code, Sec. 1183, enacted to meet just such cases as this, which is am expression of the sovereign power, speaking through the law-making body, that there is an evil and it must be remedied, and that is the quashing bills or arresting "judgments “by reason of any informality or refinement,” which,' it is declared, shall not be done “if sufficient matter appears to enable the Court to proceed to judgment.” Here the defendant is charged with assaulting the girl, with force and'arms; with intent feloniously,'unlawfully and wilfully to rape her against her 'Will, and the jury have said he did'it. .'The statute says (Code, Sec. 1102) if anyone commits “an assault with intent to-commit rape” 'upon a female, he is punishable. “Sufficient'matter appears to enable the Court to proceed to judgment,” for the charge and conviction are in the very words of the statute. The defendant knew the charge against him; he made no objection by motion to quash or for bill of particulars; he heard the evidence, and only after verdict makes the objection that the charge of “intent to rape” did not set out' the constituents of the offense of rape, which offense he is not charged to have committed. If this is not a “refinement,” which the statute was passed to prevent, it is hard to conceive to what it would aPPty- This Section 1183 was originally passed in 1811, and has been observed ■ by the Court in a long line of cases, *715commending its wisdom, many of which are collected in State v. Barnes, 122 N. C., 1031, in which case it was held that the omission of the words “with intent” in an indictment “for assault with intent to commit rape,” was not ground to arrest the judgment, because, in the language of the act, “sufficient matter appears to enable the Court to proceed to judgment.”

Besides, even if contrary to the precedents above cited, and contrary to the reason of the thing, it were necessary in an indictment for an assault with intent to commit an offense, to-charge the constituent elements of that offense which was not committed, and which, therefore, can not be proved. This has been done in this case.

In State v. Powell, 106 N. C., 635, which seems to have been inadvertent to the above authorities, there was an omission of the words “against her will,” but those words are here-used. In State v. Johnson, 67 N. C., 55, which was an indictment for rape (and not as here, merely for assault with ■intent), Reade, J., says the word “forcibly” is not indispensable, and “any equivalent word will answer, especially since our statute, which forbids the staying of judgment in criminal eases for informality or refinement.” Here, the bill charges the defendant "with force and arms, unlawfully, wilfully and feloniously did commit an assault, etc., with intent, unlawfully, wilfully and feloniously to rape against the will of her, the said Mary Mooney,” etc. "While “with force and arms” are held unnecessary and surplusage in indictments for offenses not committed with force, or when the force is otherwise alleged’ (State v. Harris, 106 N. C., 682), yet if force is not otherwise sufficiently charged, they certainly aver it. Upon the face of'the bill, it would surely seem that the constituent elements of rape are sufficiently charged; but we need not pass upon that, for this is not a charge for rape, and its constituent elements could not be proved in this action. It is an indictment for assault, suf*716■ficiently averred, with tbe aggravation tbat there was an intent to commit rape. Tbe defendant and tbe jury understood tbe charge fully, and tbe latter has said it was proved beyond a reasonable doubt.

In arresting tbe judgment there was error, and the ease must be remanded for proper judgment.

Reversed.

OooK, J., dissenting.

Tbe bill of indictment, upon which defendant was tried and convicted, is as follows: “Tbe jurors for the State upon their oath present that Henry Peak late of the county of Polk, on the first day of June, in tbe year of our Lord one thousand eight hundred and nine I y-nine, with force and arms, at and in the county aforesaid, unlawfully and wilfully and feloniously did commit an assault upon the body of Mary Mooney with intent her, the said Mary Mooney, unlawfully and wilfully and feloniously to rape, against the will of the said Mary Mooney, against the form of the statute in such case, made and provided and against the peace and dignity of the State.”

Defendant moved in arrest of judgment, “because the bill was defective, in that it did not charge the defendant with assaulting the prosecutrix forcibly and against her will,” The Court allowed the motion and arrested the judgment, from which the State appealed.

An indictment must allege the essential facts constituting the crime. Rape is the carnal knowledge of a Woman- by force and against her will. Code, Sec. 1101, 1 Bl., 210. Therefore, the three essential elements' are (1) the carnal knowledge, (2) forcibly done, and (3) against her will; and, leing a felony, they must be charged with having been done “feloniously.” This is not an indictment for rape accomplished, but rape attempted. To sustain a bill for the attempt, the crime itself, which is alleged to have been at-*717Umpted, must be technically set out. As tbe act was not accomplished, the attempt to accomplish it must, therefore, have been with the intent by force and against Tier will. To allege that she was assaulted with intent to ravish against her will is insufficient; it must be alleged that the assault was with intent to ravish by force and against her will. To rape or ravish implies force; but force charged by implication in the bill of indictment is insufficient, because force is of the essence of the offense, and, therefore, must be expressly charged.

In State v. Powell, 106 N. C., 635, the indictment is very similar to the one under consideration; it was there held to be fatally defective for that it failed té' charge, “Any words indicating that the intent was to be executed violently or against the will of the prosecutrix.” In the case at bar it alleges it to have been attempted “against her will,” but fails to allege that it was done forcibly or violently.

In State v. Jim, 12 N. C., 142, the indictment charged the assault to have been made with intent to “feloniously ravish and carnally know,” failing to charge that it was done “violently, forcibly and against the will of,” etc., and was for that reason held to be fatally defective.

It is not sufficient that the act should be committed against her will; it must also be done by force — not merely force necessary to accomplish the act of connection, but force overcoming resistance upon the part of the female. McCain Criminal Law, Sec. 439. ín charging force, no stereotyped word or phrase is essential, but, as is said by Reade, J., in State v. Johnson, 67 N. C., 55, “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 njecesslary to charge force expressly in somle appropriate language.”

As much as I regret to see a miscarriage of justice, which is-caused by the failure to draw a proper bill of indictment, yet *718it is incumbent upon tbe Courts to follow the well-settled and sound principles of law, from which I can not deviate to give relief to inadvertence or carelessness. The law upon this •subject has been well settled and needs no' further discussion. This Court, in State v. Scott, 72 N. C., on page 462, cites with approval the form of Mr. Archbold and quotes the same, in charging the crime of assault with intent to commit rape, which could easily have been followed, and prevented this failure of justice. To fail now to' charge this offense accurately is inexcusable.

Douglas, J., concurs in dissenting opinion.