tion 1107 of the General Statutes does not simply fix the punishment of the commonlaw offense of attempt at rape, but creates a statutory offense previously unknown, previously unknown, whose legal designation must be co-extensive with the statutory definition. Such seems to have been the ground of decision in the Ohio case cited,-Fox v. State, 34 Ohio St. 377. The Ohio Criminal Code defined the crime of rape. Attempt at rape was not an offense known to the law; but the statute provided that "whoever assaults another, with intent *** to commit rape *

upon the person so assaulted, shall be imprisoned," etc. The court held that the statute was the only provision of law making an attempt to commit rape an offense; that the words "attempt to commit rape," having no legal meaning, must have been used in the verdict in their ordinary meaning, and are not in their ordinary meaning the exact equivalent of the words "assault with intent to commit rape." Therefore, in returning a verdict of "Guilty of attempt to commit rape," the jury might have convicted the accused of an "attempt" in the ordinary meaning of the word, which was not a criminal offense. From this conclusion Boynton, J., dissented. Assuming a similar construction of our statute to be permissible, we think the verdict in the case a valid one.

The principle affecting the form of a general or partial verdict of "Guilty" is that, as finally rendered and recorded, it shall clearly and certainly designate the crime charged in the indictment for which punishment is to be inflicted. The general verdict of "Guilty," separated from its surroundings, is wholly indefinite; but, as actually rendered, it is certain. The clerk asks the jury whether the accused is "guilty of the crime whereof he stands indicted or informed against, or not guilty," and, if the foreman answers "Guilty," the clerk then says: "Gentlemen of the Jury: Hearken to your verdict as the court have recorded it. You, on your oaths, do say that A. B. is guilty of the crime whereof he stands indicted or informed against; so say you all." The assent of the jury to this statement constitutes the actual rendering of the verdict. 2 Swift, Dig. 413; Appeal of Watertown Ecclesiastical Society, 46 Conn. 230, 233; State v. Hoyt, 47 Conn. 518, 533. So, in the rendition of a partial verdict, the general statement by the foreman of guilt of the inferior crime is limited by the assent of the jury to the verdict as stated by the clerk. In this case the verdict assented to by the jury was, "Guilty of the crime of attempt at rape as charged in the information against him;" and the statutory element of "assault with actual violence," being included in the charge referred to, is included in the verdict. We must assume that in every case this established procedure has been followed, unless the contrary appear from the record. The record before us recites the verdict rendered as, "Guilty of the crime of attempt at rape under the said

information." information." Such a verdict complies with the essential requirements of clearness and certainty. It is mere trifling to suggest that possibly the jury might have meant that the accused was guilty of some attempt which was not a crime, or which was not an attempt to commit the crime of rape, as charged against him in the information. We think, however, that our decision should be put on a broader ground, to wit, the language used by the foreman in stating the finding of the jury, "Guilty of attempt at rape," is in itself an appropriate legal form for announcing a conviction of the inferior crime charged in the information, just as truly as the single word "Guilty" is the proper form for announcing a conviction of the greater crime.

It is not true that section 1407 creates a new statutory offense. By the common law of this state, rape is a crime, and assault with intent to commit rape is a crime. Each has a well-defined meaning, which has not been altered by statute. The latter crime is properly designated either as an "attempt to commit rape" or as an "assault with intent to commit rape." Both names have received the sanction of this court, and each is a correct legal designation of the crime. The foundation of our common law in respect to crimes was laid at the establishment of our commonwealth, in 1639. The English common law as then existing was not adopted here. 1 Col. Rec. 36, 138, 509; Laws New Haven Colony 1656, pp. 12, 13; 2 Col. Rec. 134; 5 Conn. Hist. Soc. Col. 491; 4 Col. Rec. 412; 6 Col. Rec. 144; 8 Col. Rec. 578; 12 Col. Rec. 423; Preface to Revision of 1672; Revision 1750, p. 1; Revision 1784 (Ed. 1786) pp. 1, 2, 67; 1 Root, XIII., XIV.; Holmes v. Williams, 1 Root, 335, 343; Revision 1821, p. 177, note; Fitch v. Brainerd, 2 Day, 163, 189; Baldwin v. Walker, 21 Conn. 167, 180; State v. Keena, 64 Conn. 212, 214, 215, 29 Atl. 470.

to

The underlying theory of the Connecticut law and of the English law was the same: Acts in violation of the public peace and of the rules prescribing the duties of individuals to the state and to each other, as settled by universal acceptance, are offenses. Where these rules are not formulated by statute, they may be declared by courts; and a "common law" is developed in the process of so regulating the application of this theory, through legislation and judicial decisions, as to produce a reasonable and defined system of jurisprudence. The main difference lay in the fact that Connecticut referred to "Jehovah, the Great Lawgiver," to the "Word of God," to the "justice and equity held forth in that Word," as authority for those universal rules which magistrates and legislators, "being intrusted by the freemen," have power, as "ministers of God for the good of the people, to declare, publish, and establish," and made a fresh start on this basis; while the law of England, derived in theory from the same source, referred more directly to ancient statutes and customs which had already

molded the underlying rules into a code in many respects repugnant to the conception of criminal law whose evolution became noticeable early in the seventeenth century.

Our ancestors, in developing their criminal jurisprudence, adopted so much from the English common law that the law in the two countries became, for most practical purposes, the same; but they did not adopt all the sanguinary features of the English code, nor the subtleties of technical distinctions that had grown out of conditions foreign to a new country. When, therefore, our general court, in 1642, ordered that any man who shall "forcibly and without consent ravish any mayd or woman" shall be put to death, it prescribed the punishment for a definite crime at common law, as well by the Word of God referred to in the act (Deut. xxii. 25) as by the ancient statute Westm. II. c. 34, referred to by the common law of England as then existing. The crime was the same in both aspects; i. e. the successful use of physical force by a man upon a woman for the accomplishment of unlawful copulation. According to West's Symboleographic, first published in 1590, and for the following 50 years a most commonly used authority, "unlawful copulation is every carnal conjunction had out of lawful matrimony, and it is voluntary or violent.

*

either

Violent is

termed a 'rape' or 'ravishment."" West's Symb. pt. 2, of "Indictments," etc., § 154. All the elements of the crime-the assault with physical force, resulting in copulation against the will or consent of the victimare signified by the word "rape," and the essential element of physical force alleged by the word "ravish." This appears from the precedents of indictments given by West, showing, in some, merely the essential allegation, and, in others, details which were afterwards deemed material: "One O., etc., against her will, feloniously did ravish, against the peace, etc." (section 172); "upon one A., etc., did make an assault, and then and there the same A., against the will of said A., feloniously did ravish and carnally know, against the peace, etc." (section 174); "with force and arms, viz. swords, staves, etc., upon F., etc., did make an assault, and the body and belly of the aforesaid F., with his hands, feloniously did wound, strike, and lacerate, and the same F., against her will, did then and there carnally know and feloniously ravish, against the peace, etc." (section 328). Archbold, in more recent times, gives the violent assault and the resulting rape as the bones of a legal indictment. Archb. Cr. Prac. & Pl. 580. Indeed, the indictment is, in effect, an allegation that "A. B. upon the body of C. D. did make a violent assault, with intent to commit a rape and her, the said C. D., did then and there ravish." And so Archbold says in general (page 459) that every attempt to commit a crime against the person of an individual without his consent involves an assault under such circumstances that, had the attempt succeed38 A.---58

ed, the defendant might have been convicted of the crime. This is especially true of rape. Violence in the assault-i. e. the use of physical force for the purpose of compelling submission-is one of the circumstances essential to make the successful attempt a rape.

The Pennsylvania supreme court, in an early case, held that "ravish" includes an averment of force and against the will. Harman v. Com., 12 Serg. & R. 69. And our common-law crime of attempt at rape requires an assault with physical force both adapted to and intended to result in rape. State v. Danforth, 3 Conn. 112, 115. The essence of the crime of rape does not lie in the act of copulation,-that may be lawful or unlawful, but in the use of physical force for the purpose of compelling submission. It is the great injury involved in this indignity that characterizes the offense. Perhaps the range of the crime has been extended by construction, but this is its real essence. In this respect rape differs from almost every other offense. The attempt to commit rape is not only necessarily involved in the committal of the offense, but the criminality of the completed act must be found in the nature of the attempt, which is scarcely less atrocious. Formerly we punished the crime by death, and the attempt by imprisonment for life. Our common law, in defining the crime of rape, defined the crime of attempt to commit rape. The latter is involved in the former, and an indictment for the greater crime of necessity charges the lesser. So, our common law has always permitted a conviction of the attempt upon an indictment for rape. In this it differed from the common law of England, because the symmetry of that law was broken by the technical distinction between felony and misdemeanor and the results flowing from that distinction. The "felony" of the English common law was foreign to our conditions, and was not included in our common law (State v. Setter, 57 Conn. 461, 466, 18 Atl. 782); and the consequent rule which forbade a conviction of attempt upon an indictment for rape, because the former was a misdemeanor and the latter a felony, was never recognized by our law. On the contrary, the accused may in such case be convicted of the attempt, because that is necessarily included in the greater crime, and the facts constituting the attempt are alleged in the indictment for rape. State v. Shepard, 7 Conn. 54, 56; State v. Parmelee, 9 Conn. 259, 260; State v. Dowd, 19 Conn. 388, 391; State v. Setter, 57 Conn. 468, 18 Atl. 782. In State v. Shepard the case of Com. v. Cooper, 15 Mass. 187, is cited as concurring in the view expressed; and it is now suggested that the latter case is modified by the decisions in Com. v. Newell, 7 Mass. 245, 249, and Com. v. Roby, 12 Pick. 496. In Com. v. Cooper the court seems to have held that the crime of attempt at rape is necessarily included in the crime of rape, and therefore one accused of rape can be convicted

of the attempt, unless such conviction is prevented by the rule of the English law, in force in Massachusetts, that one accused of a felony cannot be convicted of a misdemeanor, although the lesser offense is necessarily included in the greater; and also to have held that the Massachusetts statutes of 1784 and 1805 changed this rule, and permitted the conviction of a misdemeanor on a charge of felony. It was upon the construction of these statutes that Com. v. Cooper was modified by the other decisions; and we have never supposed that they questioned the decision that an accused could be convicted of an attempt upon a charge of rape, unless the English rule, which we have not adopted, were interposed. But if Com. v. Cooper must be considered as wholly overruled in Massachusetts, we think the principle of the case, aside from the question of statutory construction, is sound, and it is firmly established by our own decisions.

It follows from these considerations that section 1407 did not create a new statutory offense, but merely prescribed a new penalty for an existing common-law offense; and, in referring to that offense as an "assault with actual violence on the body of a female with intent to commit a rape," it did not alter the character of the offense, but in this respect was in affirmation of the common law. Our statutes are full of instances where, in fixing the punishment of a common-law offense, the crime is referred to, sometimes by its ordinary legal name, as rape, burglary, arson, etc., and sometimes by other descriptive words, more or less full. Such statutes, as affecting the identity of the crime, are held to be in affirmation of the common law. State v. Gaul, 50 Conn. 578, 580; State v. Worden, 46 Conn. 349, 362. This view is entirely consistent with State v. Nichols, 8 Conn. 496, and State v. Wells, 31 Conn. 210. In these cases the court was dealing only with the claim that the indictment did not follow the words of the statute, and held that to be unnecessary if the crime mentioned were sufficiently alleged. In the latter case the opinion fairly implies that the descriptive words in the statute (section 1407) indicate an attempt to commit rape at common law, although the decision did not turn on that question. In 1790 "Newgate" was established as a state prison, and the act prescribed what offenses should be punished by imprisonment in Newgate. In 1792 a supplementary "act for punishment of certain offenses in Newgate" was passed. Among these offenses was that of attempt at rape, described as: "If any person shall with force and arms and actual violence an assault make upon the body of any female with an intent to commit a rape." This act is the origin of section 1407. It prescribes imprisonment in Newgate as the punishment for an existing common-law offense, and the language of the act expresses, but does not alter, the descriptive elements of the existing offense. Before as well as after the passage

of the act, an attempt at rape was an assault with force and arms and actual violence with intent to commit a rape. The provision in section 1407 authorizing the conviction of an attempt upon an indictment charging rape was added in the Revision of 1875, and is plainly in affirmance of the common law.

Our conclusion is that, by the common law of this state, attempt to commit rape is a crime necessarily included in the crime of rape, and necessarily alleged in an indictment charging rape, and, upon such indictment, the accused may be convicted of the attempt; that in these respects section 1407 is in affirmance of the common law; that "attempt to commit rape" and "assault with intent to commit rape" are legal designations of the crime whose punishment is prescribed by section 1407, and, in meaning, the equivalent of "assault with actual violence upon the body of a female with intent to commit the crime of rape"; and that a partial verdict upon an information for rape, finding the accused "guilty of the crime of attempt at rape," complies with the essential requirements of clearness and certainty in designating the crime of which the accused is found guilty, under the information. There is no error. The other judges concurred.

JACOBS, County Treasurer, v. HOLGENSON et al. (Supreme Court of Errors of Connecticut. Nov. 30, 1897.)

LIQUOR DEALER'S BOND - BREACH COMPLAINTFORMAL DEFECTS-AIDER BY VERDICTWAIVER-JUDGMENTS-STATUTES.

1. Where a liquor dealer's bond is conditioned for compliance with certain sections of the statutes, designated in the bond by their numbers, and after the giving of the bond a statute is enacted (Acts 1895, c. 251) which defines an offense by a liquor dealer similar to one defined by one of the statutes which the bond designates (Gen. St. § 3097), but does not purport to amend it, a violation of the statute so enacted will not work a forfeiture of the bond.

2. A complaint in an action to recover the amount of a liquor license bond which alleges that defendant was charged in one criminal prosecution with two offenses, and also defines the offense of which he was convicted in language of doubtful meaning, is open to demurrer as to form, but is healed by verdict, or by a general finding of the issues in favor of plaintiff, where the cause is tried without a jury.

3. Where defendants answer, by specific admission, each allegation in a complaint, they waive their right of objection to formal defects.

4. In an action to recover the amount of a liquor license bond, the finding in a prosecution under the liquor law that the defendant "is guilty in manner and form as alleged in said complaint" is conclusive, and the legality of the sentence thereunder is immaterial.

Appeal from city court of New Haven; Edwin C. Dow, Assistant Judge.

the defendants' admission of the truth of the allegations of the complaint. The court was of opinion that the defendants were liable upon the admitted facts, and rendered judgment against them, whereupon they appealed to the supreme court for alleged errors in the rulings of the trial court. No error.

The condition of the bond sued upon is as follows: "Whereas, the above-bounden Holgenson has made application to the board of county commissioners of the county of New Haven for a license to sell spirituous and intoxicating liquors in the town of New Haven, in said county: Now, if such license shall be issued to the said Holgenson, and the said Holgenson shall comply with all the provisions of sections 3087 to 3101, inclusive, of the statutes under which said license may be issued, then this bond to be void; otherwise, of full force in the law." Paragraph 3 of the complaint alleges: "Par. 3. Said Holgenson was on the 4th day of December, 1896, in the city court of New Haven, duly convicted of selling and exposing for sale on Sunday certain spirituous and intoxicating liquors, he not having a druggist's license therefor, in violation of the provisions of the Statutes, of sections 3087 to 3101, inclusive, under which the license mentioned in paragraph 2 was issued, to wit, in violation of section 3097 of said Statutes, as amended by the Public Acts of 1895. A copy of the record of said conviction will be filed in said court at its first opening, upon the return day hereof, and marked 'Exhibit B.'" Exhibit B is the record of a prosecution against Holgenson, the complaint in which contains two counts,-the first for selung and exposing for sale, dispensing, disposing of, and giving away, certain intoxicating liquors, between the hours of 12 o'clock on Saturday, the 24th of October, A. D. 1896, and 5 o'clock on the Monday morning next following; and the second for keeping open a certain place in which intoxicating liquors were sold and exposed for sale, between the hours of 12 o'clock on Saturday night, the 24th of October, A. D. 1896, and 12 o'clock on the Sunday night next following. To this complaint Holgenson pleaded guilty. The judgment recites that the court "finds that the accused is guilty in manner and form as alleged in said complaint," and imposes a fine of $10 and costs of prosecution. From the judgment no appeal was taken. The defendants' answer to the complaint in the present case is as follows: "Paragraphs 1, 2, 3, 4, and 5 [being all the paragraphs of the complaint] are admitted." The judgment of the court below recites that the court "finds the issue for the plaintiff," and adjudges that the plaintiff recover of the defendants $300 damages and his costs. From this judgment the appeal is taken on the ground (set forth in various forms in the reasons of appeal) that the judgment is erroneous, because it legally appears from the record of the case that the only conviction, if any, alleged and proved, is a

conviction of violating the provisions of the Public Acts of 1895, and no conviction of the violation of any provision of sections 3087 to 3101, inclusive, of the General Statutes, is alleged. Section 3064 of General Statutes provides that each person receiving a license for the sale of intoxicating liquors shall give a bond, with sufficient surety, "conditioned for the due observance of all the provisions of sections 3087 to 3101, inclusive."

Albert D. Penney and James Buchanan, for appellants. Edward G. Buckland, James D. Dewell, Jr., and Benjamin I. Spock, for appellee.

HAMERSLEY, J. (after stating the facts). If the complaint in this case alleges, and alleges only, the defendant Holgenson's conviction of the offense created by chapter 251 of the Public Acts of 1895,1 the judgment is wrong. The obligations of the bond are determined by the statute law as it was on January 1, 1896. At that time, by force of section 3064 of the General Statutes, the bond would be forfeited if the licensee should be convicted "of a violation of any of the provisions of sections 3087 to 3101, inclusive." No one of these sections then contained a provision forbidding the giving away of intoxicating liquors between the hours of 12 o'clock on Saturday night and 5 o'clock on Monday morning next following; but chapter 251 of the Acts of 1895 creates such an offense, which is similar to one of the offenses defined in section 3097;2 and it is claimed by the plaintiff that this act should be construed as if it said, "Section 3097 is amended so as to read as follows [incorporating therein the new offense in place of the similar offense defined in the section as originally enacted]." Such construction is not allowable.

The act of 1895 is an independ

1 Pub. Acts 1895, c. 251: "Every person who, by himself, his servant, or his agent, between the hours of twelve o'clock on Saturday night and five o'clock on Monday morning next following, in any place of any kind or description in which spirituous or intoxicating liquors are at any time sold or exposed for sale, or are reputed to be sold or exposed for sale, shall dispense, dispose of, or give away any spirituous or intoxicating liquors, shall be fined not less than fifty nor more than one hundred dollars, or be imprisoned not more than six months, or both; but this act shall not apply to sales or transactions under a druggist's license."

2 Gen. St. § 3097: "Every person who by himself, his servant, or his agent, between the hours of twelve o'clock on Saturday night and twelve o'clock on Sunday night next following, shall sell or expose for sale any spirituous or intoxicating liquors, or shall keep open any place of any kind or description in which spirituous and intoxicating liquors are at any time sold or exposed for sale, or are reputed to be sold or exposed for sale, or in which any sports or games of chance are at any time carried on or allowed, or are reputed to be so carried on or allowed, shall be fined not less than fifty nor more than one hundred dollars, or be imprisoned not more than six months, or both; but this section shall not apply to sales under a druggist's license."

ent act. It does not purport to be in addition to or amendment of or repeal of any prior act or part thereof. Whether the new offense is so defined as, by implication, to repeal the provision relative to the similar offense contained in section 3097, is immaterial. That section is not amended by including the new offense within its provisions, and therefore a conviction of that offense cannot work a forfeiture of the bond. The complaint, however, does allege Holgenson's conviction of a different offense, to wit, keeping open, between the hours of 12 o'clock on Saturday night and 12 o'clock on Sunday night next following, a place where intoxicating liquors are sold. This is admittedly a conviction of the violation of one of the provisions contained in section 3097, and within the condition of the bond.

The defendants urge that in paragraph 3 of the complaint this conviction is defectively alleged. The record of the conviction is a part of paragraph 3, and, by including that record in the paragraph, the pleader alleges, inferentially at least, that Holgenson was charged in one prosecution with two offenses, to wit, the offense of violating the provisions of the act of 1895 in the first count, and of violating one of the provisions of section 3097 in the second count, and that, by his plea of "Guilty," he was convicted of each of these distinct offenses. The pleader also, in general terms, defines the offense of which Holgenson was so convicted inaccurately and in language of doubtful meaning, especially in connection with the legal conclusion alleged that the act of 1895 was an amendment to section 3097. Paragraph 3 is plainly open to demurrer. We think, however, that the defects are matters of form, rather than substance, and that the paragraph as a whole does substantially allege that Holgenson was convicted of the violation of the provisions of section 3097 specified in the record of conviction, which is made a part of the paragraph. Such formal defects are healed by verdict (Griffin v. Pratt, 3 Conn. 513, 515; State v. Ryan, 68 Conn. 512, 517, 37 Atl. 377); and the finding of the court below, recited in the judgment, that "the court, having heard the parties, finds the issue for the plaintiff," must operate in the same manner. The defendants might have demurred, and in that case the defects could have been cured by amendment. In answering by a specific admission of each allegation in the complaint, they have waived their right of objection to formal defects as effectually as if they had answered by denial. They cannot now limit the effect of their admissions as evidence upon which the court may act in finding the issues for the plaintiff. Connecticut Hospital for Insane v. Town of Brookfield, 69 Conn. 1, 5, 36 Atl. 1017. The law requires all demurrers to distinctly specify the reasons why the pleading demurred to is insufficient, and cannot be evaded by treating an answer

admitting each allegation as a demurrer to formal defects.

The defendants further urge that the record of conviction indicates that the police court regarded the complaint before it as charging a single offense, and that the sentence is illegal if treated as a punishment for more than one offense. The formal finding of the judgment is "that the accused is guilty in manner and form as alleged in said complaint." This is conclusive. It is immaterial to the present case whether the sentence was imposed on one or both counts, or is illegal. The bond was forfeited by the conviction, unless an appeal was taken. By the terms of section 3064, the forfeiture took place after the plea of guilty was entered, when the time limited for giving notice of appeal expired. Quintard v. Knoedler, 53 Conn. 485, 487, 2 Atl. 752. There is no error

in the judgment appealed from.. The other judges concurred.

MUNICIPAL CORPORATIONS-DUTIES OF POLICEMEN -NEGLIGENCE-DEFECTIVE STREETS-NoTICE-APPEAL-HARMLESS ERROR.

1. It is competent for the city of Hartford to require policemen to remedy or report defects in streets under its charter (6 Sp. Laws, p. 749), authorizing it to prescribe in detail the duties of policemen, though its charter also provides for a board of street commissioners, who are charged with the duty of remedying defects in streets.

2. A notice to a policeman of a defect in a street is a notice to the city, where he is charged with the duty of remedying or reporting defects. 3. A policeman may presume that he who is relaying a sidewalk upon a crowded street has a permit therefor, and hence, though he is charged with the duty of reporting defects in streets, he need not report that a sidewalk is being relaid. 4. After sundown, a policeman charged with the duty of remedying or reporting defects in streets found a strip 50 feet long and 3 feet deep, where a sidewalk had been removed. He placed a feeble lantern at each end of the strip, but there were no lights or obstructions at the sides, and a pedestrian fell in. Held, the city was liable.

5. Where the trial court found a city liable by reason of the negligence of two policemen in not remedying or reporting defects in a street, the judgment will be sustained, though one of the policemen was free from negligence.

6. The memorandum decision of the trial court is not affected by an erroneous statement that recovery may be had for injuries resulting from a defective sidewalk, though the city had no notice thereof, where such decision in effect states there was notice in fact, by reason of notice to a proper municipal officer.

Appeal from superior court, Hartford county; William T. Elmer, Judge.

Action by Sarah Cummings against the city of Hartford to recover damages for personal injuries caused by a defective highway, and heard in damages to the court, after defendant had suffered a default. Facts found, and judgment rendered for the plaintiff for $800 damages, and appeal by the defendant for al