Stevens v. State

Yellott, J., delivered the opinion of the Court. In the indictment, as shown by the record, are two counts. In the first count the plaintiff in .error is charged ²⁰³ with the commission of the crime of rape, and in the second count he is charged with an assault with intent to commit a rape. In the Circuit Court for Somerset County, he was arraigned and pleaded not guilty, and was tried, convicted and sentenced to be hanged.

The verdict of the jury was “ guilty of the charge in the first count.” A motion for a new trial was filed and was overruled. A motion in arrest of judgment was then filed, founded on the apparent fact that the jury, in rendering a verdict, did not find on both counts in the indictment. The Court below overruled this motion, and the prisoner then presented a petition to have the record removed as upon writ of error. The prisoner was subsequently sentenced ; and he afterwards filed a petition which presents the question in relation to the legal effect of a sentence, passed anterior to the decision of the Court of Appeals upon the writ of error.

The application for the first writ of error was premature as no final judgment had then been rendered ; but as the Attorney-General, not being disposed to take advantage of this irregularity, has fully argued the questions thus presented, it is deemed proper to consider and determine those questions without reference to any perceptible departure from regular procedure. The first objection urged by the plaintiff in error is that the jury failed to find on both counts in the indictment. It is not contended that a felony and a misdemeanor, growing out of the same transaction, cannot be charged in separate counts in the same indictment, for this question was fully determined in the case of Burk vs. State, 2 H. & J., 429 , in which case the Court said, “ there is no substantial reason why a rape, and an assault with intent to commit a rape, may not be charged in the same indictment.” But it is contended that when the jury found the accused guilty of a rape, they should also have passed upon the second count. It is clear that the jury could not, after ²⁰⁴ finding him guilty of a rape, have found him not guilty of an assault with intent to commit a rape.

The crime,. charged in the first count in the indictment, could not have heen committed without unlawful violence to the person of the unfortunate victim, and all unlawful violence of this nature is an assault with intent to commit the crime. As was said in Hays vs. The People, 1 Hill, 352 , “an assault