State v. Dick, 6 N.C. 388, 2 Mur. 388 (1818)

July 1818 · Supreme Court of North Carolina

6 N.C. 388, 2 Mur. 388

State, v. Dick, a slave.

From Edgecombe.

At common law, Rape was a felony, but the offence was afterwards changed to amisdemeanor before the statute of Westminster. 1. By that statute, the punishment was mitigated ; but by Statute Westminster’, 2. The offence was again changed to a felony, and thence its present existence as a felony, is by statute : an indictment for Rape must therefore conclude contra fannam statuti.

Indictment for a Rape in the following words :

Tbejurors for the State, upon their oath present, that negro Dick, (the property of Mrs. Blount) late of Edge-combe county, on the twenty-first day of July, in the year of our Lord, one thousaud, eight hundred and seventeen, at and in the county of Edgecombe, in and upon Judah Wilkins, spinster, in the peace of God and the State, then and there being, violently and feloniously, did make an assault, and her the said Judah Wilkins, then and there, violently and against her will, feloniously did ravish ari^ carnally know, against the peace and dignity of the State.

The prisoner was found guilty, and the case was transmitted to this Court upon the indictment and finding, to determine whether any, and if any, what judgment shall be pronounced.

SeaweIíI Judge,

delivered the opinion of the Court.

At common law, Rape was a felony, but the offence was afterwards changed to a misdemeanor, before the statute of Westminster the 1st. By that statute, the punishment which then was castration and loss of eyes, was mitigated: but by the statute of Westminster the 2d, the offence was again changed to a felony, and hence, its present existence as a felony, is in virtue of that statute ; the indictment must therefore conclude contra formam slatuii. Lord Coke, Lord Hale, and Hawkins, all concur in the necessity of such a conclusion : and in second Institute 180, a clear history of the offence is to beftnrd. It is true Mr. East, in his Crown Law, is of a contrary opinion, but we cannot feel ourselves justified, in so important a case, to depart from what has been by the great men above mentioned, considered in settled law, in complaisance to the opinion of any writer however respectable : more especially, as all the precedents have such a conclusion. The judgment must therefore stand arrested.