From Edgecombe.
At common law, rape was a felony, but the offense was afterwards changed to a misdemeanor before the statute of Westminster 1. By that statute the punishment was mitigated; but by statute Westminster 2 the offense 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 formam statuti.
The jurors for the State, upon their oath present, that negro Dick (the property of Mrs. Blount), late of Edgecombe County, on 21 July, 1817, 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 and 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.
SEAWELL, J.
At common law rape was a felony, but the offense was afterwards changed to a misdemeanor, before the statute of Westminster 1. By that statute the punishment, which then was castration and loss of eyes, was mitigated; but by the statute of Westminster 2, the offense 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 statuti. Lord Coke, Lord Hale and Hawkins all concur in the necessity of such a conclusion; and in 2 Institute, 180, a clear history of the offense is to be (389) found. 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 as 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.