#### The state *v*. Jim, a negro slave.

From New-Hanover.

In an indictment for a rape, the words *“*forcibly and against Hip will,” are necessary.

Hence, an indictment for a capital felony, under the act of 1823, not containing those words, was held to be fatally defective.

Per Tayloh, Chief-Justice, a slave on the trial of such an indictment, is entitled to a Jury of slave owners.

The Defendant was indicted under the act of 1823 for making an assault “ in and upon the body of one *M. J.*a white female, with intent her the said *M. J.*then and there feloniously to ravish, and carnally know, &c.”

In making up the Jury, the Counsel for the Defendant challenged for cause those Jurors who were not owners of slaves, which was overruled by the presiding Judge. After a verdict for the State, the Defendant's Counsel moved in arrest of judgment, because it was not charged in the indictment, that the offence was committed “ violently, forcibly and against the will of the said *M.*J.” His honor Judge Norwood, for this cause, arrested the judgment, whereupon the Solicitor prayed an appeal to this Court.

The Attorney-General declined to argue the case for the State.

Gaston, for the Defendant.

1st. The prisoner was entitled to a Jury of slave owners, (acts of 1773, 1807, 1816 and 1818.)

2d. The offence is not sufficiently described in the indictment. When a new offence is created, or an old one aggravated into a felony, the indictment must bring the offence within the words of the statute. *(Starkie*240 *to*253.) The words of the statute are, with “intent to commit a rape upon the body. &c.” These words are not used, and those substituted, are not equally precise.

*1433d. In an indictment for a rape, it is not sufficient to say “feloniously ravished.” (1 *Russel 807, Starkic*"84,) the words “against the will, &c.” are absolutely necessary, and so are all the precedents. (3 *Chith/s C. L, 810, 815,*816, *Jlrchbold Grim. Plead.*258, 261.)

HeNtjeRSON, Judge.

Rape is the carnal knowledge of a female, *forcibly*and *against her*will■These essential requisites *fordbhj*and *against her -will,*are omitted in this indictment. But it is said, that as the word iC ravish” of itself, implies that the act was done forcibly, and against the will of the female, the words “ *feloniously ravished,”*supply this defect. This would be transferring from the Court to the Jury, the right and power of drawing inferences of *law;*they and not the Court would decide, what acts did, and what did not amount to rape. The law therefore, in this and all other cases, requires the facts which constitute the offence to be stated, that the Jury may' affirm them or not> according *to*the evidence. Thus in murder, which *ex vi termini,*means a homicide committed with malice aforethought, it is not sufficient to state in the indictment, that the accused fe-loniously murdered the deceased. And so in other of-fences, the facts constituting the offence must be stated, for without such statement, it cannot appear to the Court that the Jury have not drawn a false and impossible conclusion. The indictment therefore is defective, and the judgment of the Superior Court must be affirmed.

There are other points arising in the cause, upon which, as they have not been argued, I do not wish to express an opinion.

Tayior, Chief-Justice.

The charge in this indictment was no more than a misdemeanor at common law,, though an aggravated one, as it still continues in relation to all but the colored population. But the form of the indictment constantly laid the intent, to be, to commit *144the offence “ violently and against the will” of the female, as appears from the precedents referred to by the Atfor-riey-General. The late act of Assembly having elevated ^he 0{fencc to a capital felony, affords an additional reason for maintaining and adhering to the established forms, for if so much precision is required to put a misdemeanor in the shape of an indictable offence, *a fortiori*should it be observed, when the same offence is made capital, for the policy of the law will sometimes overlook exceptions made to an indictment for misdemeanor, which nevertheless, it will sustain *infavorem vitas.*In an indictment for an assault with intent to murder, it is essential to state the intent to be ‘‘ feloniously, wilfully, and of his malice aforethought, to kill and murder,” because these are the characteristics of the crime designed to be perpetrated, and for the. same reason, and in this case a stronger one, the essential qualities of the crime should be laid in an indictment for attempting it. There is indeed a case (8 *Johns.*505,) where the indictment was sustained, which charged the intent to commit a murder, on the ground that it. followed the words of the statute. But in that case, the statute did not raise the offence beyond its original degree of misdemeanor, but only aggravated the punishment, by imprisonment in the state prison. For this omission therefore, I think this indictment is defective.

It appears to me, that the act of 1793, c. 381, extending the trial by Jury to slaves, and directing the Jury to be composed of owners of slaves, is not repealed by any subsequent law. A twofold consideration dictated the policy of this law, the force of which remains unimpaired by the extension of additional privileges to slaves. It was intended to surround the life of the slave with additional safeguards, and more effectually to protect the property of the owner, by infusing into the trial, that temperate and impartial feeling, which would probably exist in persons owning the same sort of property. *145That'the master would have assurance of an equitable trial by persons, who had property constantly exposed to similar accusations, and who would not wantonly sacrifice the life of a slave, but yield it only to a sense of justice, daily experience is sufficient to convince us. — . The property of a man is more secure when he cannot be deprived of it, except by a Jury, part of whom at least, have the like kind of property to lose. And this reáson, it seems to me, continues to operate with full force, notwithstanding tiie many humane and valuable provisions which have been subsequently made for the trial of slaves. I am of opinion, that the judgment should be arrested.

Judgment attirmed.