State v. Wells , 31 Conn. 210 ( 1862 )

Butler, J.

The statute on which this information was framed, has been upon our statute books, substantially in its present form, about sixty years. During that period, so far as we are advised, the form adopted by the attorney in this case has been the only one published, (except a less perfect one in 1833 by Judge Niles in his Civil Officer,) and has been generally used. It was inserted by the late Chief Justice Swift in his Digest, and was retained in the late revision of that work by Judge Dutton ; and it would be not a little singular, if, at this late day, by a critical examination of it, counsel had succeeded in showing that it was defective in an important particular.

In order to test the sufficiency of the averments, we must look at the elements or ingredients of the offense intended to be charged. Every attempt consists of two elements, viz.:— an act of endeavor to commit the particular offense, and an intent by that act of endeavor alone, or in conjunction with other necessary acts, to commit it. Both elements must be specifically charged, and an information for an attempt therefore must charge an act done, with an intent to commit the particular crime described.

They have in England no statute embracing, in specific terms, an attempt to commit a rape. The offense is there included in the act of Geo. IY., chap. 31, sec. 25, which provides for the punishment of every assault with intent to commit a felony. The kind of assault is not specified, and there, under a general allegation, any assault with that intent may be proved. The assault constitutes the “ act of endeavor ; ” and the legislature of this state have thought proper to define the act, and provide that it must be an assault with “ actual violence.” It is not to be supposed that they meant to weaken the sanctions of the law against an offense so odious and detestable. It is rather to be presumed that they meant to define the assault necessary to constitute it, so that an inference of guilt might not he too hastily drawn from a technical or constructive assault.

The term “ violence ” is synonymous with physical force, and the two are used interchangeably, in relation to assaults, by elementary writers on criminal law. 2 Bishop Crim. Law, §§ 32, 3, 4. Actual is something real, in opposition to constructive or speculative, something “ existing in act.” An assault ’with actual violence therefore, is an assault with physical force “ put in action,” exerted upon the person assailed. This, under the statute, must be alleged. But the language of the statute is not technical, and the allegation may or may not be in the words of it. Any language which expressly or by necessary implication imports and charges the exertion of physical force upon the person assaulted is sufficient. In this case the words of the statute are not followed or used, but an aggravated battery, which by necessary implication includes the exertion of physical force upon the person, is expressly charged-, and that charges all, as an “ act of endeavor,” which the statute imports or requires.

There is no error in the judgment, and it must be affirmed.

In this opinion the other judges concurred.