#### THE STATE v. JESSE, a Slave.

An indictment upon the act of 1823, (Taylor's Rev. c. 1229,) making an assault by a person of colour upon a white female, with intent to commit a rape, capital, must charge the assault to have been felonious. Charging an assault, with intent “feloniously to ravish,” is not sufficient.

The prisoner was tried at Craven, on the last Circuit, before his Honor Judge Nash, upon an indictment containing two counts, the first of which charged hirnwith a rape; and the second with an assault with intent to commit a rape, upon the body of a white female. He was acquitted upon the first count, but ■ found guilty upon the second, which was in the following words, to wit:

“ And the jurors aforesaid, upon their oath aforesaid, do further present, that Jesse, a slave, being a person of colour, late of the county of Craven, the property of Miss Sarah Green, on' the first day of October, in the year of our Lord one thousand eight hundred and thirty-*298six, with force and arms, at and in the county aforesaid, in and upon one Bransy Witherington, in the peace of God and the state then and there being, did make an assault; and her the said Bransy Witherington then and there did beat, wound and ill-treat, with intent to commit a rape upon the body of her the said Bransy Withering-ton, being a white female, and with intent her the said Bransy Witherington, violently, .forcibly, and against her will, then and there feloniously to ravish and carnally know; and other wrongs to the said Bransy Witherington contrary to the form of the statute in such case made and provided, and against the peace and dignity of the sta te.”

On the part of the state, the assault, with intent to commit the rape alleged, was fully proved; but it was contended for .the prisoner, that he was under the age of fourteen years at the time, and evidence as to this fact was laid before the jury, both for him and the state. His Honor, after directing the jury to acquit the prisoner upon the first count, instructed them, “ that if they were' satisfied from the evidence, that the prisoner had committed the assault, as alleged in the second count, and with the intent to commit a rape upon the person of the prosecu-trix, they ought to return a. verdict of guilty on that count, unless the prisoner had succeeded in showing them that he was at that time under the age of fourteen years: that if they were satisfied such was the fact, they ought to acquit him on that count also. The Court further instructed them, that though this was matter of defence on the part of the prisoner, yet if, «pon the evidence before them, they had a reasonable doubt whether, at the time the crime was perpetrated, the prisoner was of the age of fourteen years, he was entitled in law to the benefit of that doubt.”

After the conviction of the prisoner upon the second count, his counsel moved for a new trial, upon the ground that the Court had erred in instructing the jury, that the fact of the prisoner’s being under the age of fourteen years at the time the crime, was committed, was matter of de-*299fence to be made out by him. This motion being overruled, the counsel then moved in arrest of judgment, because the indictment concluded contrary to the form of the statute; whereas, it was contended, that it should have concluded contrary to the form of the statutes. But this motion was also overruled; and judgment of death being pronounced, and execution awarded, the prisoner appealed.

All crimes felonies; tíiat°tefm statutes

J. Ji. Bryan, for the prisoner.

The Attorney-General, for the state.

Ruffin, Chief Justice.

The counsel for the prisoner, deeming the points taken for him in the Superior Court untenable, has declined arguing them. This renders it unnecessary that the Court should notice them, further than to remark, that in our opinion, the prisoner has no cause to complain of the benignant and favourable manner in which his Honor put to the jury a point of fact in his defence, that was left uncertain upon his own evidence. The counsel has, however, pointed to an omission in the indictment, which he insists, and the Court thinks, is fatal to the sentence passed on the prisoner.

The prosecution is founded pn the statute of 1823, {Taylor’s Rev. c. 1229,) which enacts, “ that any person of colo’tir, convicted by due course of law, of an assault, with intent to commit a rape, upon the body of a white female, shall suffer death, without the benefit of clergy.” The crime is thus created a felony; for not only those acts which are made felonies in the express words of a statute, but also all those which are decreed to have or undergo judgment of life and member by any statute, thereby become felonies, whether the word “ felony” be omitted or mentioned. 1 Hale’s P. C. 627. 641. 703. 1 Hawk. B. 1, c. 7, see. 5.

The indietment charges that the prisoner “ made an assault on, &c., with an attempt to commit a rape on the body of her, the said, &c., and with intent her the said B. W. violently, forcibly, and against her will, then and there feloniously; to ravish and carnally know, contrary *300to the form of the statute, &c.” The objection is, that there is no application of the term “feloniously” to the act of assaulting.

The office of the term felo-nice is to describe the intent at the instant of doing a criminal act— to apprize the Court of the measure of punishment — and to regulate the form of trial — it has no syaonyme.

•The office of that term is to describe the offence. It denotes, at the instant of the doing of an act, thé disposition of the accused in doing it; which constitutes the guilty will that renders the person criminal. It is therefore one of the constituents of the offence, and must be precisely alleged. It is necessary for another purpose; which is, distinctly and immediately to apprize the Court of the degree of punishment that may be inflicted, and will be demanded; and thus to regulate the mode of trial. Where, as in the present case, the act charged is a misdemeanor at common law, as well as a felony by statute, unless the indictment expressly denominate it a felony, it cannot be seen on the record, that the prisoner, although guilty of a felony — was accused and tried for the felony. Consequently, judgment as for the felony, ought not to be

Unquestionably, by the law of England, this epithet is to be annexed expressly, or by copulatives, to every act set forth as a, constituent of the offence. If it be omitted, the defendant can be convicted only of a trespass or misdemeanor. 2 Hale, 171.184. Hawk. B. 2, c. 26, s. 65. Mr. Chitty remarks, 1 Cr. Law, 242, that “ traitorously,” “ feloniously,” and the like, are terms which mark the colour of the offence with precision, and are absolutely necessary to determine the judgment. Serjeant Hawkins, following Lord Coke, Co. Litt. 391, says that felony ex vi termini, signifies quodlibet crimen felleo animo perpetratum, and can be expressed by no periphrasis, or word equivalent, without the word felonice. Book l,c. 7, sec. 1.

As the term, then, has no synonyme; as it described a peculiar disposition and intent, essential to the existence of crimes of a certain grade; and as it determines the privileges of the accused on his trial, and the degree and consequences of the punishment, it admits of no substitute; and its omission must be fatal to the indictment, as one for felony.

*301Anditis not dis-wlthbythe J811’ 809,)’ régu-latlj£pro' indict-^matter sub- ¿ cannot be ^P™sed

From these observations it results, in our opinion, as ■was intimated in State v. Moses, 2 Dev. Rep. 452-465, that jfelonice is not dispensed with by the act of 1811, (Rev. c. 809,) for whatever so materially enters into the constit,ution of the crime, as the intent, and likewise has such important influences on the trial and judgment, must be substance. If it be said, that this indictment charges an assault made “ with intent her, the said B. W .feloniously to ravish,” and therefore that it must be a “ felonious assault,” by necessary intendment of law, the answer is, that although that be true, yet the prisoner is not charged •as for a felony, and may not have been tried as for a felony ; and therefore, ought not to have judgment for the felony. The very same terms are appropriate to an indictment for a misdemeanor at common law, according to the precedents. Cro. Cir. Com. 61. 3 Chit. Cr. L. 816. 6 Wentw. 394. On the other hand, indictments under the stat. 18 Eliz. c. 7, charge that the accused “ feloniously made'an assault,” as well as that he “ feloniously did carnally know and abuse” a woman child under ten years of age. Cro. Cir. Com. 401.

Nor does the conclusion, “against the form of the statute,” supply this defect. The authorities already quoted say that nothing can. But besides that general doctrine, it is laid down, that the indictment must explicitly state all the circumstances which constitute the definition of the offence in the statute, so as to bring the case wdthin it, independently of the general averment in the conclusion. Fost. 423. 1 Hale, 517-526. If the statute had used the terms “ felonious assault,” it would be clear that the indictment must contain the same language. Now the assault laid must have the same character, since the act makes the assault a felony, by implication from the punishment. It is therefore as essential that it should be charged/eZomce, as it would have been, if the statute had contained that word.

The Court is therefore of opinion, that the judgment of ■death is erroneous, and must be reversed; and as the Superior Court has no jurisdiction of the misdemeanor, when committed by a slave, there can be no judgment *302upon this indictment; but it must be arrested; which must be certified accordingly.

Per Curiam. Judgment reversed.