Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-07-03
SUPREME COURT DECISIONS.
Hashvtike, December Term, 1863
Thomas IA. COldwell, Attorney
GeneRnl and Reporter.


I'd. Es-ills, ia error vs. The State of Tennessee.
The Judgment against the plaintiff in
error is in the following words and
figures, to wit
State of Tennessee, Robertson county,
Circuit Court, October term, 1S68.-The
Grand Jurors for the State aforesaid,
upon their oath present, that Ed. Nevills,
"a man of color, on the 18th day of Au-
gust, 1868, in the county and State afore-
said, was guilty of an assault and battery
upon the person of Josephine WiIks, she
being female, with the intent forcibly
and against her viii, to have unlawful
carnal knowledge of her, against the
peace and dignity of the State.
JAS. E. RICE, Atty Gen1.
At the February term, 1869, of the
Circuit Court of said county Of Robert
son, the plaintiff in error moved the
court to quash said Indictment, which
was refused by the court. At said term
of the court he was put upon his trial,
upon plea of not guilty to said indict-
ment. The jury returned verdict of
guilty, and fixed the term of imprison-
ment of the plaintiff in error for the
offense in the Penitentiary of this State
at five years.
He therefore moved the court for anew
trial and in arrest of judgment, which
motions were seyerally overruled by the
court, and therefore the judgment of the
court was pronounced against him upon
the finding of the jury. He filed his bill
OF exceptions, which was signed by the
court and made part of the record in
the cause, and appealed in error to this
court. 1t is stated in the bill of excep-
tions these were no exceptions to the
charge of the court, and his charge is not
set out in the bill of exceptions.
The indictment against the prisoner is
founded upon section 4, 6l5 of the Code,
which is in the following words: ''Any
person guilty of committing an assault
and battery upon any female, with an in
tent, fOrcibly and against her will, to have
unlawful carnal knowledge of her, shall,
on conviction, be imprisoned in the Peni-
tentiary not less than two nor more than
ten years" The first question presented
for our decision in this cause, Is the in
dictment sufficient to put the prisoner
upon his trial for the felony created by
the statute. 3
If not, the court below erred in refusing
to quash it, and he further erred, in re-
fusing to arrest the judgment. 1t will be
seen from an inspection of section 4,615
of the code, that it is the same as the SD
section of the felony act of 1929, Chapter
%.
In other words, the SD section of the
act of 1929 is brought forward into the
code, at section 4,615 with only slight
modification in the verbiage of said section
59, without disturbing its sense and mean
ing. At common law, it was not a fel-
ony to commit an assault, or an assault
and battery upon female, with the intent,
| forcIbly and against her will, to have car
nal knowledge of her. 1t was only a
high misdemeanor. But by our act of
| 1929, section SO, Chap. %, it is made a
felony. The Indictment against the pris-
oner in this case is not sufficient.
1t does not charge him with the COM
mission of the felony under the statute,
but only with the commission of a simple
assault and battery, with aggravating
circumstances attending the same.
The indictment under section 4,615
of the code, should charge that the
prisoner felOnjOasly did make an assault,
or did telOniOttsly commit an assault and
battery upon the body of Josephine
Wilks, with the intent, forcibly and
against her will, to have unlawful carnal
knowledge of her. E
Then the felony created by the statutes
would be charged in the indictment.
Williams VS. the State, Hum. 5Sj. When
no actual carnal knowledge is had, but
the assault and battery has been commit
ted, with the intent .tOrcibLy and against
her aOiH, it is the assault and battery that
constitutes the felony, and the indictment
must charge that the prisoner JctOnjOUsly
assaulted her, with the intent, etc. No
felonious intent is imputed to the prison
er, in the assault and battery charged in
this Indictment. Il follows, therefore,
that he has been tried and convicted for a
felony not imputed to himin the indictment
The prisoner under this Indictment nigh
have been tried for an aggravated assault
and battery, high nlisdemeanor, for an
assault is proven, by evidence of indecent
liberties taken with a female, if il
be without her consent. 3 Green
leaf on Evidence, sec. SO, page SO,
Note 2. But as the prisoner has been
tried for, and found guilty of felony
not charged against him in the indict-
ment, and hehonorable Court pronounced
the judgment upon the verdictof the jury,
we are constrained to arrest the judgment
and remand the prisoner to be indicted
anew, if the Attorney General of the
State should deem it to be his duty, Il
charge the prisoner with the felony undel
the statutes. As the cause has to be trieC
again, we express no opinion upon tht
facts disclosed by the record. lr E
the judgment will be arrested and tht
prisoner remanded to Robertson county
JOHN @. GAUT, Special Judge.
/ A true copy:
JESSE G. FRAZER, Clerk.
Closing OF the POsfofficc.
The Postofice will be open from t
nfSI,roE MonIa,, V,oorDfpn altar yUh hla