Mears v. Commonwealth

The opinion of the court- was delivered May 27, 1858, by ' Porter, J. — This is a good indictment for an assault and battery, but nothing' more. By the common law, rape is a felony, for it would have cost the vassal the loss of his fee, and that is the test. In every* written legal accusation of the offence, it must be laid as a felony, or not "at all. In charging an intent to commit the crime, the term feloniously is just as indispensable; for when associated with a misdemeanor, the intent will take the hue of the latter act, unless by the proper term it be carried into the grade to which it belongs. This indictment not only omits that word, but it omits also to charge that the act was attempted against the will of the prosecutrix; an averment never improper in such a paper, but doubly necessary where the felony is left out of view. 12 S. & R. 69. In the spirit of that principle which presumes innocence until guilt be established, we infer that what is not charged in an indictment does not exist, and it is the business of the pleader to exclude, by proper averments, the conclusions to which the accused is thus entitled. Tried by these rules, the present bill charged ah assault on the prosecutrix, “ with intent to ravish and carnally know her,” but without denying her consent, for the term ravish does not necessarily import the employment of violence. This is a very different thing from rape. 11 S. & R. 177. It should have been punished simply as an assault and battery, by fine and imprisonment, and not by a sentence of five years by separate confinement at labor; for guilty as the defendant may have been, he was to suffer only for that with which he was charged, not for that of which he was suspected. We have power to modify the sentence; 8 Barr, 223 ; and to pronounce the less severe one which the law authorized ; but the [388] purpose of justice seems to have been sufficiently answered by tbe term of two years and nine months, which the prisoner has already served. Judgment reversed and defendant discharged.