Shackelford vs. Hays.

By the Court.-LUMPKIN, J. delivering the opinion.

[1] The writ of error in this case, was made returnable to the Supreme Court at its March Term, 1847, at Cassville, that being the first term in that judicial district after the signing of the bill of exceptions. The papers appertaining to the cause were mailed at Jefferson, Jackson county, and addressed to the Clerk of this Court at Milledgeville, in time to have been received and docketed for Cassville. By some casualty, the nature of which does not appear, the packet did not come to hand until after the adjournment of that Court, and application is now made to place the case on the present docket, so as to entitle the party to a hearing.

The Court is unanimously of the opinion, that this cannot be done. The constitution declares that the Supreme Court "shall at each session in each district dispose of and finally determine each and every case on the docket of such Court, at the first term after such writ of error brought; and in case the plaintiff in error in any such case shall not be prepared, at such first term of such Court, after error brought, to prosecute the same, unless precluded by some Providential cause from such prosecution, it shall be stricken from the docket, and the judgment below shall stand affirmed." Kelly R. 5.

As the case then would have been stricken from the docket had it been entered at Cassville, unless the inability to proceed was Providential, it is clear that the party must be visited with the like penalty, unless he is prepared to prove that the failure in the mail was attributable to superhuman cause. Indeed, it is a matter of grave doubt whether this showing can be made at the second session of the Court after the writ of error has been sued out.

The cardinal feature in the amended constitution calling this Court into existence, is the prevention of delay, and every section of that statute passed in pursuance thereof, is but a practical illustration of the great, though long and much neglected principle of Magna Charta—“ Nulli vendemus, nulli negabimus, aut differemus rectum vel justitiam.”

Camp vs. The State.

No. 58. BURTON CAMP, plaintiff in error vs. THE STATE OF GEORGIA, defendant in error.

[1.] An indictment which states the offence in the terms and language of the penal code, or so plainly and distinctly that the nature of the offence may be easily understood by the jury, is sufficient.

[2.] The offence of an assault with intent to commit a rape, if stated in the language and terms of the penal code defining the offence of rape, need not be called in the indictment a misdemeanor.

[3.] On an indictment for an assault with intent to commit a rape, evidence that the person charged to have been injured is in fact a common prostitute, or evidence of reputation that she is a woman of ill fame, may be submitted to the jury, to impeach her credibility, and disprove her statement that the attempt was forcible and against her consent.

Indictment for an assault with intent to commit a rape. Tried before Judge DOUGHERTY. In Gwinnett Superior Court. March Term, 1847.

The prisoner was convicted, and a motion made for new trial, and also in arrest of judgment.

For the grounds in support of each of these motions, and the questions made, the reader is referred to the opinion delivered by the Supreme Court.

In reference to the ground for new trial, predicated upon that part of the charge of the Court to the jury, ruling that the testimony of the witness for the prisoner as to the want of chastity of Cynthia Emeline Davis, upon whom the assault was alleged to have been made, was admitted solely to enable them to judge of the intention of the prisoner, it is thought proper to state, that said Cynthia Emeline Davis was the principal State's witness, that she alone proved the offence charged, and that on the part of the prisoner it was proven that she was a woman of ill fame.

HILLYER, JACKSON & SIMMONS, for the prisoner.

WM. H. HULL, representing Sol. Gen'l. HARRIS, for the State.

Mr. HULL, submitted the following positions:

The character of a witness for want of chastity, does not impeach her veracity. Roscoe Crim. Ev. 165; 1 Starkie on Ev. 211, note.

It was lawful for the judge, in his discretion, to permit the Solicitor General to ask a juror as to his place of residence.

Camp vs. The State.

It is no ground for a new trial, that a physician is called to see a sick juror in the jury room, when it appears that nothing was said by him about the case. Graham on New Trials, 92.

The words violently and feloniously, are not necessary under our penal code. Prince, 658.

A new trial will not be granted in case of felony for the misdirection of the judge. Graham on New Trials, 506, 507, 516; Chitty Crim. Law, 654, and notes.

When the testimony of the prisoner was admitted to the jury, it is no ground of new trial that the Court gave a wrong effect to it in the charge.

"

By the Court.-NISBET, J., delivering the opinion.

[1] The first exception in this case, is founded on the refusal of the Court to grant a new trial, because the indictment does not charge the offence to have been committed "violently and feloniously."

The indictment charges the offence substantially in the language of the code defining it, and that is sufficient. "Rape is the carnal knowledge of a female, forcibly and against her will." Hotchk. 709. An attempt to commit a rape, the offence for which the defendant was indicted, is an attempt to know a female forcibly and against her will. Our code does not, in so many words, make this an offence; it does, however, by implication, because it prescribes a punishment for an attempt to commit a rape. There was no necessity to define an attempt to commit a rape. Rape being defined, the attempt to commit a rape is included in that definition. In pleading, therefore, the offence of an attempt to commit a rape is to be described according to the definition of rape. If, in the description of it, the offence is stated in the terms and language of the penal code, or so plainly that the nature of it may be easily understood by the jury, it is sufficient; for the legislature has declared that, "Every indictment or accusation of the Grand Jury shall be deemed sufficiently technical and correct, which states the offence in the terms and language of this code, or so plainly that the nature of the offence charged may be easily understood by the jury." Hotchk. 787. The statement of the offence in this indictment, is, that the defendant, with force and 28, in the county aforesaid, in and upon one Cynthia Emeline

Camp vs. The State.

Davis, a white female, in the peace of God and said State then and there being, did make an assault and her the said Cynthia Emeline Davis, did then and there beat, wound and ill treat, with intent, her, the said Cynthia Emeline Davis, forcibly and against her will, then and there, carnally to know and feloniously to ravish, and other wrongs, &c." The prime elements of the crime are stated, to wit, with force and arms, forcibly and against her will carnally to know the prosecutrix. As to this exception, we hold the indictment good.

Another ground upon which the defendant sought to arrest [2.] the judgment, is, that the indictment charges him with the offence of "an attempt to commit a rape," when it should have designated the offence, a misdemeanor, because our penal code declares, that attempts to commit the offences in it defined, shall be indicted as misdemeanors. The Court below overruling this ground, the plaintiff in error excepted. We do not think the circuit judge erred in this particular, for two reasons.

1. Because the code having prescribed a specific penalty for an assault with intent to commit a rape, thereby created it an independent offence, and took it out of the operation of the general clause referred to.

2. If this is not so, then it is sufficient to say that this is an indictment for misdemeanor. The name given to it in the bill, does not characterize the offence; the description does characterize it. It may be, and it is, called an assault with intent to commit a rape, and yet may be, and by the description in this case is, a misdemeanor. Again, it is claimed that the Court below erred in this, that it permitted the Solicitor General, when each juryman was called, to inquire of him in what part of the county he resided; because, says the counsel for the plaintiff in error, the law permits no such question to be put to test the competency of the juror. The reason is true, and yet we do not think that there is any thing in the exception; because it appears from the statements in the bill, that this was no judicial act; it was permitted, because not objected to, as mere matter of convenience. The question of right to put such a question was not made, and not decided by the presiding judge; we have, therefore, nothing touching this exception to

review.

The only other ground of error found in this bill, and urged by [3.] counsel, grows out of the charge of the Court to the jury. The charge of the Court is stated in the bil of exceptions in the

Camp vs. The State.

following words: "The Court charged the jury, among other things, that one mode of attacking the credit of a witness, was to produce her neighbours or acquaintances, who were acquainted with the character of the witness in the neighbourhood, for truth and veracity, and who would swear, that from that knowledge, they would not believe her on oath in a court of justice. That in prosecuting that mode of attack, the testimony of the witness, as to the want of chastity in the female assaulted, was admitted solely to enable them to judge of the intention of the prisoner." This instruction was given to the jury, as to the force and effect of the testimony which had been admitted going to show that the female assaulted, was a person of ill fame. The plaintiff in error charges error in these instructions, in this, that the effect of such testimony is not solely to enable the jury to judge of the intention of the defendant in committing the assault; but its further effect is, to impeach the credibility of the witness, who was the person alleged to be injured, by disproving her statements that the assault was made forcibly and against her will.

'We agree with the learned judge, that evidence of the want of chastity in the prosecutrix, may be admitted to show the intention of the defendant in perpetrating the assault, that is, to show that he did, or did not, intend forcibly and against her will, to commit a rape on the prosecutrix. But we do not agree with him, that it is admitted solely for this purpose. We think that evidence of ill fame, of general character for want of chastity, may be admitted for the further purpose of enabling the jury to judge of the truth of the material facts stated by her, as a witness, to wit, that the attempt was forcible and against her will.

cases.

We are not now to disturb the well established rule, as to the manner in which the credibility of a witness may be attacked for want of general character for truth and veracity. This question is to be determined upon principles peculiar to this kind of case. The rules of evidence in indictments for rape, or an assault with intent to commit it, are different from what they are in ordinary The offence is peculiar. Lord Hale says, that, this accusation is easily made, hard to be proved, and harder to be defended by the party accused, notwithstanding his innocence. 1 Hale, 635, 636. The act of cohabitation, because of a sense of decency which does not wholly forsake the most abandoned of either sex, is generally in secret. Hence the very general absence of direct testimony. The law admits the testimony of the prosecutrix, whilst