Opinion
December Term, 1838.
Indictment — Rape.
1. An indictment upon our statute (1 Rev. Stat., ch. 34, sec. 5), for abusing and carnally knowing a female child under the age of ten years, which charges the rape to be "in and upon one M. C., an infant under ten years of age." etc., "and her, the said M. C., feloniously did unlawfully and carnally know and abuse," etc., is sufficient without describing the infant as a "female child"; nor is the addition of "spinster" to the name of the infant requisite in such an indictment.
2. In indictments for offences against the persons or property of individuals, no addition to the names of those individuals is requisite.
THE prisoner was put upon his trial at Cumberland, on the last circuit, before his Honor, Judge Nash, upon an indictment which charged that he, "on the twenty-sixth day of May, in the year of our Lord one thousand eight hundred and thirty-eight, with force and arms, in the county of Cumberland aforesaid, in and upon one Mary M. Cook, an infant under the age of ten years, to wit: of the age of seven years, in the peace of God and the State, then and there being, feloniously did make an assault, and her the said Mary M. Cook, then and there feloniously did unlawfully and carnally know and abuse, against the form of the statute in such case made and provided, and against the peace and dignity of the State." The prisoner was found guilty, and his counsel moved in arrest of judgment, because the prisoner was charged in the bill of indictment "with carnally knowing and abusing one Mary M. Cook, an infant, under the age of ten years, whereas the offense should have been charged to have been committed on Mary M. Cook, spinster, an infant, etc., or upon Mary M. Cook, a woman child," etc.
The Attorney-General for the State.
His Honor sustained the motion in arrest of the judgment, and the solicitor for the State appealed.
Our statute (see 1 Rev. Stat., ch. 34, sec. 5) is as follows: (290) "Any person who shall ravish and carnally know any female of the age of ten years or more, by force or against her will, or who shall unlawfully and carnally know and abuse any female child under the age of ten years, shall be adjudged guilty of felony, and shall suffer death without benefit of clergy." That part of our statute which relates to the abuse of a female child is merely taken from the fourth section of the statute of 18 Eliz., ch. 7. That section of the English statute declares, "That if any person shall unlawfully and carnally know and abuse any woman child under the age of ten years," etc. The form of an indictment, good under the English statute, we think, must be good under our act, which is so near a copy of the English statute. We have examined in several books of practice in Crown cases the precedents of indictments for rape on infant females under the age of ten years. In the form in Stubbs Cr. C., 612, and also that in Archb. C. P., 373, she is stated as "an infant under the age of ten years." The words "woman child" are not inserted in any part of the forms given by these authors. The form in 3 Chitty's Crim. Law, 816, does contain the very words of the statute, "in and upon E. P., spinster, a woman child, under the age of ten years," etc. Mr. Chitty, in a note says, "Sometimes the words woman child are omitted, but it seems better to follow the words of the statute." These remarks of his are given to the profession from abundant caution; he does not pretend that there ever has been any adjudication demanding the insertion of these words in the indictment. When we read the sentence in the indictment and arrive at the personal pronoun her, it seems to us it is sufficiently certain that the person mentioned as abused is no other than a female. This pronoun "her" agrees grammatically with its antecedent, Mary M. Cook, in gender, number, and person. Secondly, in indictment for offenses against the person or property of individuals in England, no addition to the names of those individuals is requisite: 2 Hale, 182, and it has been said, if stated it need not be proved. Rex v. Graham, 2 Leach, 547; Rex v. Oglive, 2 Car. and P., 230; Archb. Crim., p. 31. The objection that the addition of "spinster" to the name of Mary M. Cook was omitted in the indictment has no weight. We have looked (291) through the whole record and there does not appear to us anything why judgment should not have been rendered for the State against the prisoner. The judgment rendered by the Superior Court of Law for the county of Cumberland in this case is by this Court reversed. This opinion will be certified to the said Superior Court of Cumberland County, that judgment of death may be there given for the State against the prisoner, according to law.
PER CURIAM. Judgment reversed.
Cited: S. v. Farmer, 26 N.C. 225.