Tbe bill of indictment, upon which defendant was tried and convicted, is as follows: “Tbe jurors for the State upon their oath present that Henry Peak late of the county of Polk, on the first day of June, in tbe year of our Lord one thousand eight hundred and nine I y-nine, with force and arms, at and in the county aforesaid, unlawfully and wilfully and feloniously did commit an assault upon the body of Mary Mooney with intent her, the said Mary Mooney, unlawfully and wilfully and feloniously to rape, against the will of the said Mary Mooney, against the form of the statute in such case, made and provided and against the peace and dignity of the State.”
Defendant moved in arrest of judgment, “because the bill was defective, in that it did not charge the defendant with assaulting the prosecutrix forcibly and against her will,” The Court allowed the motion and arrested the judgment, from which the State appealed.
An indictment must allege the essential facts constituting the crime. Rape is the carnal knowledge of a Woman- by force and against her will. Code, Sec. 1101, 1 Bl., 210. Therefore, the three essential elements' are (1) the carnal knowledge, (2) forcibly done, and (3) against her will; and, leing a felony, they must be charged with having been done “feloniously.” This is not an indictment for rape accomplished, but rape attempted. To sustain a bill for the attempt, the crime itself, which is alleged to have been at-*717Umpted, must be technically set out. As tbe act was not accomplished, the attempt to accomplish it must, therefore, have been with the intent by force and against Tier will. To allege that she was assaulted with intent to ravish against her will is insufficient; it must be alleged that the assault was with intent to ravish by force and against her will. To rape or ravish implies force; but force charged by implication in the bill of indictment is insufficient, because force is of the essence of the offense, and, therefore, must be expressly charged.
In State v. Powell, 106 N. C., 635, the indictment is very similar to the one under consideration; it was there held to be fatally defective for that it failed té' charge, “Any words indicating that the intent was to be executed violently or against the will of the prosecutrix.” In the case at bar it alleges it to have been attempted “against her will,” but fails to allege that it was done forcibly or violently.
In State v. Jim, 12 N. C., 142, the indictment charged the assault to have been made with intent to “feloniously ravish and carnally know,” failing to charge that it was done “violently, forcibly and against the will of,” etc., and was for that reason held to be fatally defective.
It is not sufficient that the act should be committed against her will; it must also be done by force — not merely force necessary to accomplish the act of connection, but force overcoming resistance upon the part of the female. McCain Criminal Law, Sec. 439. ín charging force, no stereotyped word or phrase is essential, but, as is said by Reade, J., in State v. Johnson, 67 N. C., 55, “there is no doubt that the indictment must charge the act to be done forcibly, * * *’ and although ‘ravished’ would seem to imply force, yet it is njecesslary to charge force expressly in somle appropriate language.”
As much as I regret to see a miscarriage of justice, which is-caused by the failure to draw a proper bill of indictment, yet *718it is incumbent upon tbe Courts to follow the well-settled and sound principles of law, from which I can not deviate to give relief to inadvertence or carelessness. The law upon this •subject has been well settled and needs no' further discussion. This Court, in State v. Scott, 72 N. C., on page 462, cites with approval the form of Mr. Archbold and quotes the same, in charging the crime of assault with intent to commit rape, which could easily have been followed, and prevented this failure of justice. To fail now to' charge this offense accurately is inexcusable.
Douglas, J., concurs in dissenting opinion.