[54 Del. 40] Charles L. Paruszewski, Deputy Atty. Gen., for the State of Delaware.
Oliver V. Suddard, Wilmington, for Keith Lynn Lasby.
Defendant was tried and convicted of an assault with intent to commit rape, in violation of 11 Del.C. § 782. He has moved for reargument of a pretrial ruling by the Court and for a new trial under Rule 33, Superior Court Rules, Del.C.Ann.
1. As to the motion for reargument:
The statute under which defendant was indicted reads, in part, as follows:
'Whoever, with violence, assaults any female with intent to commit a rape, shall be guilty of felony * * *.' 11 Del.C. § 782.
The indictment under which defendant was tried charges that on a specific day in this county defendant '* * * did then and there feloniously assault one Judith Marie Burkholder with intent to commit rape upon the said Judith Marie Burkholder'.
Argument was made to the Court, as the trial was about to begin, that the indictment was defective because it did not charge that defendant made the alleged assault 'with violence'. The motion was denied and reargument of that ruling is now asked.
Rule 7(c) of this Court, which implements Article I, § 7 of the State Constitution, Del.C.Ann., provides the measuring rod when an indictment is up for scrutiny:
'Nature and Contents. The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * *'
The plain, concise, definite statement of essential facts is designed to accomplish two purposes: to put defendant on full notice of what he is called upon to defend, [54 Del. 42] and to effectively bar subsequent prosecution for the same offense. State v. Martin, Del.Sup.1960, 163 A.2d 256; State v. Caruso, 1942, 3 Terry 310, 32 A.2d 771. If the indictment fulfills that basic purpose, it is sufficient. State v. Blendt, 1956, 10 Terry 528, 120 A.2d 321. In accomplishing that purpose it is not necessary to follow the express language of the statute, but the essential facts of the crime charged must be alleged. State v. Allen, 1955, 10 Terry 150, 112 A.2d 40, 42; State v. Morrow, 1939, 1 Terry 363, 10 A.2d 530.
Defendant contends that the statutory phrase 'with violence' is an indispensable element of the crime charged and since this phrase, or its equivalent, is missing from the indictment, it is deficient and ought to be dismissed. Defendant has not called to my attention any Delaware decision discussing this or an analogous issue; he relies, rather, on principles formulated in the cases cited above and argues that upon application to his indictment, they pinpoint a missing element, i. e., an allegation that the offense was committed with violence. In addition, defendant contends that the Grand Jury did not consider the violence element and, hence, he was brought to trial for an offense that the Grand Jury did not find.
In my opinion the indictment is sufficient. The statute makes criminal an assault, with violence, upon a female with intent to rape her. The critical criteria are: (1) the assault and (2) with intent to commit rape. I say this because an assault has the element of violence in it. Under our law an assault is an unlawful attempt by force and violence to do injury to the person of another, with the present ability to carry the attempt into effect. State v. Brewer, 1921, 1 W.W.Harr. 363, 114 A. 604. See also the annotations in 11 Del.C. § 105.
The phrase 'with violence' thus serves to underscore or emphasize the assault upon the person; it does not add a separate and distinct element to the offense.
[54 Del. 43] Defendant was charged with assaulting a female with intent to rape her. This charge, supplemented with the specifics as to ...