#### The State *v.*Martin.

'la an indictment under the act of 1823, ( *Tay. Rev- c.*1229,) ‘'declaring the punishment of persons of color in certain cases,” it is necessary to chai-ge that the assault was made with an intent to commit a.rape. An allegation that the defendant feloniously attempted to ravish is insufficient.

The prisoner was tried on the last circuit, at Hyde, before his Honor Judge Martin, upon the following indictment:

“ The jurors for the state, upon their oath present, that *Martin,*a “ slave, &c. not having, &c. but being moved, &c. on &c. with force “ arms at &c. in and upon one S. H. a white female, in the peace &c. “ violently and feloniously did make an assault, and her the said S. H- “ forcibly and against the will of her the said S. H. then and there “ did feloniously attempt to ravish and carnally know; against the “form, &c.”

After a verdict for the prosecution, his Honor arrested the judgment, and Mr. *Solicitor Miller,*on behalf of thy state, appealed.

The *Mtorney General,*for the state.

No counsel appeared for the prisoner.

Rupein, Judge.

The *Mtorney General*admits in the argument, that the guilty will, with which the assault was made, is a necessary allegation in the indictment. Rut it is contended, that it is sufficiently expressed by “ then and there feloniously did attempt to ravish,” following the charge of the assault. The statute makes it a capital felony, for any person of color to *make an assault with intent to commit a rape*upon the body of a white female. Though in some minor offences the guilty will ( which in all cases is necessary to constitute a crime ) is implied from the wrongful overt act, and therefore need not be stated in the *indictment;*and in other cases the allegation of such criminal purpose, though required in the frame of the indictment, is formal so far as respects the finding of that purpose as a fact by the jury, because the law would *prima facie*infer it from the act of which it prompted the perpetration *; yet*generally, evqn at common law, the intent constituting an act a c%. *330pita] crime must be. precisely and specifically alleged. This rule is exemplified by the words of art, *felonice, burglariter,*and the like. Much more is that the case, -when the indictment is founded on a statute. The terms used by the statute are then necessary in the indictment, not only to denote the disposition of the accused, but also to describo and identify the crime, as that for which the particular punishment is prescribed. This may be a good reason, why courts should not allow the sufficiency of any other epithet, though equipollent in common parlance. The term *wilful,*for example, is indispensable in an indictment for perjury under the statute of *Elizabeth,*and cannot be supplied by any other. It is a safe rule therefore to follow the words of the statute; and because it is safe, the courts have adopted it. If one departure be allowed, it cannot be told how far astray it may lead us. But independent of that consideration, it is the duty of the court to require all pleadings to be expressed in terms as brief and apt as possible. There, can be none to denote the intent more apt than that word *intent*itself. It is the language of the common law. of statutes, of pleading. It is perfectly understood, and ought to be retained. It is said by *Lord Elleuborough*in *Rex*v. *Phillips, (6 East*472,) to be the proper word to convey the specific allegation of intent. It is found in all the precedents within our reach ; and there is no other term so expressive and precise. Here the word *attempt*has been used in its stead. We should be justified in rejecting it upon the sole ground, that it is not the word of the statute. But it is not even synonymous. *Intent*referred to an act denotes a state of the mind with which the act is done. *Mempt*is expressive rather of a moving towards doing the thing, than of the purpose itself. An *attempt*is an overt act itself. An assault is an “ attempt to strike,” and is very different from a mere intent to strike. The statute makes a particular intent, evinced by a particular act, the crime. That purpose and that act cannot be so well nor sufficiently described, as by the words of the statute itself.

Per Curiam. — Judgment aeeirmep.»