{ "id": 8662386, "name": "STATE v. MARSH", "name_abbreviation": "State v. Marsh", "decision_date": "1903-03-31", "docket_number": "", "first_page": "1000", "last_page": "1004", "citations": [ { "type": "official", "cite": "132 N.C. 1000" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "78 N. C., 552", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8697848 ], "opinion_index": 0, "case_paths": [ "/nc/78/0552-01" ] }, { "cite": "114 N. C., 844", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651665 ], "opinion_index": 0, "case_paths": [ "/nc/114/0844-01" ] }, { "cite": "6 Minn., 190", "category": "reporters:state", "reporter": "Minn.", "opinion_index": 0 }, { "cite": "44 Ala., 110", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 5466864 ], "opinion_index": 0, "case_paths": [ "/ala/44/0110-01" ] }, { "cite": "17 Tex. App., 574", "category": "reporters:state", "reporter": "White & W.", "opinion_index": 0 }, { "cite": "130 N. C., 711", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275027 ], "opinion_index": 0, "case_paths": [ "/nc/130/0711-01" ] }, { "cite": "106 N. C., 635", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651873 ], "opinion_index": 0, "case_paths": [ "/nc/106/0635-01" ] }, { "cite": "67 N. C., 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2092625 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nc/67/0055-01" ] }, { "cite": "12 N. C., 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8685592 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/12/0142-01" ] }, { "cite": "118 N. C., 1200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654780 ], "opinion_index": 0, "case_paths": [ "/nc/118/1200-01" ] }, { "cite": "72 N. C., 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698170 ], "opinion_index": 0, "case_paths": [ "/nc/72/0461-01" ] }, { "cite": "107 N. C., 861", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275335 ], "opinion_index": 0, "case_paths": [ "/nc/107/0861-01" ] }, { "cite": "112 N. C., 854", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652119 ], "opinion_index": 0, "case_paths": [ "/nc/112/0854-01" ] }, { "cite": "101 N. C., 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651519 ], "opinion_index": 0, "case_paths": [ "/nc/101/0702-01" ] } ], "analysis": { "cardinality": 467, "char_count": 7894, "ocr_confidence": 0.455, "pagerank": { "raw": 2.910394779730384e-07, "percentile": 0.8457545208234148 }, "sha256": "fb26eae63eafa719d060e4c1643f03c3af744d0cb47cf970f735d9555e59fc6a", "simhash": "1:31531e209c72881a", "word_count": 1392 }, "last_updated": "2023-07-14T17:22:40.266480+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. MARSH." ], "opinions": [ { "text": "Clark, C. J.\nThe prisoner\u2019s counsel moves in this court in arrest of judgment for defect in the indictment, which is set out above in the statement of the case. This he had a right to do, though no objection on that ground was taken in the court below. State v. Watkins, 101 N. C., 702; State v. Caldwell, 112 N. C., 854; Rule 27 of this court.\nThe Code, Section 1101, defines rape as the \u201cravishing and carnally knowing any female of the age of ten years or more, forcibly and against her will,\u201d with the further statement as to what constitutes rape when the female is under that age. All the authorities concur that the word \u201cravish\u201d is indispensable. Hale P. C., 628; 2 Rawle\u2019s Bouvier Law Dict., 825; Coke Litt., 184 note p.; Gougleman v. People, 3 Parker, 15. It takes its place with \u201cfeloniously,\u201d \u201cburglariously,\u201d and \u201cmalice aforethought,\u201d which have been held indispensable (State v. Arnold, 107 N. C., 861; State v. Barnes, 122 N. C., at p. 1036) wherever appropriate, because they have no synonyms. 2 Hawkins P. C., Ch. 23, Sec. 77. As to the words \u201ccarnally know\u201d there are authorities which hold that they are not indispensable, being implied in the word \u201cravish\u201d (Wharton Cr. Pl. & Prac.. 9 Ed., Sec. 263), but there are others that rather intimate that these words should be also used. The word \u201cfeloniously\u201d is, of course, indispensable, State v. Scott, 72 N. C., 461, as indeed it is in all indictments for felonies. State v. Bunting, 118 N. C., 1200.\nBut all three of the above terms are used in the indictment in this case. The defect alleged is the absence of the words \u201cforcibly\u201d and \u201cagainst her will.\u201d As to the word \u201cforcibly\u201d in State v. Jim, 12 N. C., 142, it was held that an indictment omitting both terms \u201cforcibly\u201d and \u201cagainst her will\u201d was defective'. In State v. Johnson, 67 N. C., 55, it was held that the omission of the word \u201cforcibly\u201d was not fatal when the charge was \u201cagainst her will, did feloniously ravish,\u201d the court saying through Reade, J., that any equivalent word would answer in lieu of \u201cforcibly,\u201d that though the word \u201cravish\u201d would seem to imply force, yet that word is not an express charge of force, standing alone, but that the addition thereto of the words \u201cfeloniously\u201d and \u201cagainst her will\u201d was sufficient under our statute as an express charge of force. In State v. Powell, 106 N. C., 635, where both the words \u201cforcibly\u201d and \u201cagainst her will\u201d were omitted, it was held, following State v. Jim, supra, that the bill was defective. This last case was for an assault with intent to commit rape and was overruled in State v. Peake, 130 N. C., 711, but only on the ground that, in an indictment for assault to commit rape, it was not necessary to describe rape in the words which must be used to charge the offense of rape itself.\nThus, on a review of our authorities, it will be seen that it has been held that the absence of both \u201cforcibly and against her will\u201d are fatal, but that forcibly can be supplied by any equivalent word, that it is not supplied by the use of the word \u201cravish,\u201d but it is sufficiently charged by the words \u201cfeloni-ously and against her will.\u201d In all the cases above reviewed, where the words, \u201cagainst her will\u201d are omitted, the bill was held defective. No- doubt the words \u201cagainst her will\u201d can be supplied by an equivalent as well as the word \u201cforcibly,\u201d but we do not find such equivalent in this bill. The words \u201cunlawfully, wilfully and feloniously\u201d did \u201cravish and carnally know,\u201d do not charge it was \u201cagainst her will\u201d except by implication, and it is held in State v. Johnson, supra, that they do not even sufficiently charge that the act was \u201cforcibly\u201d perpetrated in the absence of the words \u201cagainst her will.\u201d\nIt is a subject of regret that a trial of so serious a nature, occupying so much of the public time, should thus go for naught, but we do not feel at liberty to overrule the above repeated decisions of this court. Those decisions were so easily accessible and indeed were so well known to the draftsman of this bill that the omission of the words \u201cagainst her will\u201d must have been accidental. But we will repeat here what was said in State v. Barnes, 122 N. C., at p. 1038: \u201cThe accustomed and approved forms are accessible, and should be followed by Solicitors until (as with murder, perjury and in some other instances) they are modified and simplified by statute\u201d \u2014 further adding that Solicitors would best serve the object of the statute (The Code, Sec. 1183) passed to disregard refinements and informalities and to secure trials upon the merits \u201cby observing approved forms so as not to raise unnecessary questions as to what are refinements and infor-malities and what are indispensable allegations.\u201d\nThe form set out in 1 Archbold Cr. Pl. & Pr., 999, is (after charging the assault) \u201cand her the said C. D. then violently and against her will feloniously did ravish and carnally know.\u201d This form, while omitting \u201cforcibly,\u201d retains, it will be noted, the words \u201cagainst her will\u201d and is substantially the bill that was sustained in State v. Johnson, 67 N. C., 55.\nThe Attorney-General cites us to the following foreign authorities which sustained indictments omitting the words \u201cagainst her will.\u201d In Harman v. Com., 27 Pa., (12 S. & R.), 69, it was held \u201cnot necessary to charge that the offense was committed forcibly and against the will of the woman,\u201d that matter being embraced \u201cin the charge feloniously did ravish and carnally hnow,\u201d Tilgman, O. J., citing English authorities freely to sustain his ruling. The same ruling exactly is made in Gibson v. State, 17 Tex. App., 574. In Leoni v. State, 44 Ala., 110, the court sustained an indictment charging simply \u201cbefore the finding of this indictment G. L. forcibly ravished E. L.,\u201d and in O\u2019Connell v. State, 6 Minn., 190, the court sustained an indictment \u201cdid feloni-ously ravish O. D.\u201d In these last two cases no assault is charged and the indictments are drawn under statutes simplifying the form, and which our Legislature, it may be, might also adopt to prevent such instances as this, for it gives full information to the prisoner, but we can not do this. The adoption of simpler forms of indictment for murder, perjury, etc., was by action of the Legislature, not of the courts. As the prisoner has not been in jeopardy he may still be put to trial upon a proper bill. State v. Lee, 114 N. C., 844; State v. England, 78 N. C., 552, and other cases collected in Wharton Cr. Pl. & Pr. (9 Ed.), Secs. 507, 457.\nJ udgment Arrested.", "type": "majority", "author": "Clark, C. J." } ], "attorneys": [ "Robert D. Gilmer, Attorney-General, for the State.", "Redwine & Stack and Armfield & Williams, for the prisoner." ], "corrections": "", "head_matter": "STATE v. MARSH.\n(Filed March 31, 1903.)\n1. ARREST OP JUDGMENT \u2014 Indictment\u2014Appeal.\nA motion in arrest of judgment for defects in the indictment may be made in the supreme court though no objection was made thereto in the trial court.\n2. INDICTMENT \u2014 Rape\u2014 The Code, Secs. 1101, 1188.\nAn indictment for rape must allege that the act was done forcibly and against the will of the prosecutrix, or words equivalent thereto.\nINDICTMENT against John Marsh, beard by Judge E. W. Timberlahe and a jury, at November Term, 1902, of the Superior Court of Union County, upon the following bill:\n\u201cThe jurors for the State upon their oaths present that John Marsh, late of the County of Union, on the 27th day of October in the year of our Lord one thousand nine hundred and two, with force and arms at and in\u2019the county aforesaid, in and upon one Alice Carelocli in the peace of God and the State then and there being, unlawfully, wilfully, violently and feloniously did make and assault, and her, the said Alice Carelock, then and there unlawfully, wilfully and feloniously did ravish and carnally know against the form of the statute in such case made and provided and against the peace and dignity of the State.\u201d\nFrom a verdict of guilty and judgment thereon, the prisoner appealed.\nRobert D. Gilmer, Attorney-General, for the State.\nRedwine & Stack and Armfield & Williams, for the prisoner." }, "file_name": "1000-01", "first_page_order": 1050, "last_page_order": 1054 }