(after stating the facts.) 1. The jurisdiction of the court to proceed in the cause is challenged on the ground that the order of the circuit judge calling the special term of the court does not conform to the requirement of the statute in that it fails to recite that the defendant was in jail at the time. The order recites that the defendant was “held in custody-charged with a capital offense.”
The statute authorizing the holding of special terms of the circuit court read as follows: “The judge of any circuit court may at any time hold a special term for the trial of persons confined in jail, by making out a written order to that effect and transmitting it to the clerk, who shall enter the same on the records of the court.” Kirby’s Digest, § 1532. It has been held by this court that every fact, according to the strict terms of the statute, necessary to give authority to hold a special term of the court must be made to appear of record, otherwise the jurisdiction of the court will fail. Dunn v. State, 2 Ark. 230; Pulaski County v. Lincoln, 9 Ark. 326. The order of the judge must therefore recite every jurisdictional fact, because in no other way can those facts appear upon the record.
The particular question which we have to determine is whether or not the words “now held in custody charged with a capital offense” necessarily mean that the defendant was confined in jail, for under no other construction can the order be taken as having been in conformity with the statute. It is not essential that the exact words of the statute be used. Words, of like import or meaning are sufficient. We think that the words used necessarily mean that the defendant was confined in jail. The law does not recognize any other method of holding a prisoner in custody charged with crime than by confinement in jail until examination or trial. The prime object of the statute providing for the holding of special terms of the circuit court is to afford speedy trials to persons deprived of their liberty, and an officer could not deprive a prisoner of that right by holding him in custody without actually confining him in jail.
We hold that the order made by the circuit judge was sufficient to give the court jurisdiction at the special term, and it is unnecessary to pass upon the question of the power of the court at a subsequent term to amend, by nunc pro tunc entry, the order made by the judge in vacation.
2. It is next contended that the indictment does not charge an offense, and that the conviction thereon can not be sustained because it fails to allege that the act of carnal knowledge was committed by the accused against the will of the female. . If the sufficiency of the indictment had been questioned by demurrer, we are not prepared to say that the demurrer should not have been sustained. We do not decide that question. The indictment was not questioned either by demurrer or by motion 'in arrest of judgment, and we are confronted only with the proposition whether or not the alleged defect can be taken advantage of for the first time after the trial and verdict and in this court on appeal or writ of error. Where an indictment omits an allegation of some essential element of the crime — in other words, if it fails to 'charge a public offense, it is void, and can be questioned for the first time on appeal, without a demurrer or motion in arrest of judgment having been interposed. 12 Cyc. of Law and Proc. pp. 811, 812 and cases cited. But when the defect is one of form or of imperfect expression merely, it can not be taken advantage of on appeal or writ of error for the first time. In other words, if the indictment imperfectly charges a public offense, the defect must be taken advantage of by demurrer or motion to quash; but if it omits entirely an allegation of some essential element of the crime charged, so that it can be said that no offense is charged, then it can be taken advantage of at any time, 1 Bishop, Crim. Proc. § 707a; Clark, Crim. Proc. § 118; Heymann v. Reg., 8 L. R. Q. B. 102; Bradlaugh v. Reg., 3 Q. B. Div. 607; Brennan v. People, 110 Ill. 535; People v. Swenson, 49 Cal. 388; State v. Knowles, 34 Kan. 393; People v. Schultz, 85 Mich. 114.
Does the indictment in this case charge an offense? It omits an express allegation tljat the act was committed against the will of the female.
Our statute defines the crime of rape as “the carnal knowledge of a female forcibly and against her will.” Kirby’s Digest, § 2005.
The fact that the act was committed against the will of the female is an essential element of the crime, and must be charged in the indictment. The indictment accuses the defendant of the - crime of rape and alleges that he “then and there in and upon the body of Annie McAble, a female, unlawfully, wilfully, feloniously, forcibly and with his malice aforethought did make and assault, and her, the said Annie McAble, unlawfully, willfully, feloniously, forcibly and of his malice aforethought did ravish and carnally know,” etc. This necessarily implies that the act of' carnal knowledge was done against the will of the female. The act involved an assault, as is properly charged in the indictment, and it could not have been an unlawful assault if not against the will of the female. Therefore to charge an assault upon the female in committing the act necessarily charges that it was done against her will. The charge might not be deemed sufficiently specific and clear if the. indictment had been met by a demurrer to quash, but it is sufficient to support a judgment of conviction. It can not be said that it wholly fails to charge the commission of a public offense.
3. It is also argued that the judgment of conviction was void because the foreman of the grand jury failed to indorse his name on the back of the indictment, and because the judge of the court ordered a special venire of petit jurors, instead of causing the list of jurors selected by the jury commissioners at the preceding term to be opened and the jurors thus selected to be summoned. It is too late to raise these questions for the first time on appeal or writ of error. No objection was taken below to the indictment nor to the petit jury summoned and impaneled.
Affirmed.
Hill, C. J.The Criminal Code provides: “The indictment is sufficient if it can be understood therefrom.”
First. * * * (as to the grand jury and court).
Second. * * * (as .to the venue).
Third. “That the act or omission charged as the offense is stated with such a degree of certainty as to enable the" court to pronounce judgment on conviction, according to the very right of the case.”" And it further provides: “No indictment is insufficient, nor can the trial, judgment or other proceeding thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits.” Kirby’s Digest, § § 2228, 2229. An indictment alleging that the defendant is guilty of the crime of rape, and charging that in the county where found the defendant did at a certain time upon a designated female unlawfully, wilfully, feloniously and forcibly ravish and carnally know her, gives a sufficient understanding of the crime charged to enable the court to pronounce judgment on conviction according to the very right of the case. If, however, it was insufficient in not charging “against her will,” it does charge he is guilty of rape (which is defined to be “the carnal knowledge of a female forcibly and against her will.” Kirby’s Digest, § 2005) in that he unlawfully, willfully, feloniously and forcibly did ravish and carnally know the designated woman, then the omission of those other words do, not tend to the prejudice of any of the substantial rights of the defendant, and should be disregarded.
The Code in this, as in some other States, had to be construed and shaped by lawyers and judges learned in the intricacies of common-law pleading, and who were trained in the niceties and refinements of criminal procedure, and who looked with black disfavor upon radical changes wrought by the civil and criminal codes.
The natural result was to minimize the changes required; and by inimical and technical construction many of the wisest reforms were frittered away. The above-quoted sections have never been given the full sway which their plain language calls for, and, in my opinion, in consequence many cases have been reversed where the indictment should have been held sufficient, and where none of the substantial rights of the defendant had been prejudiced. Therefore, I think the indictment in this case was good, whether raised on demurrer, motion in arrest, or writ of error, or any other way.
For these reasons I concur in-the judgment, but not in the reasoning and distinctions in the opinion of Mr. Justice McCulloch, as the basis of the judgment. They are sound, but I prefer putting the judgment on the ground mentioned. Upon the other questions discussed I concur entirely in the opinion.
Mr. Justice Battle concurs in the view that this is a good “Code indictment.” Opinion delivered July 23, 1906.