People v. Burke

Indictment—Sufficiency of.—Where the charging part of an indictment for rape was in the words of the statute defining that offense : held, sufficient.

Appeal from the County Court of Mendocino County. The defendant was indicted for the crime of rape. The charging part of the indictment was as follows: “The said Peter Burke, on the 18th day of May, A. D. 1867, at the County of Mendocino, did have carnal knowledge of a female, named Elizabeth Harris, forcibly and against the will of the said Elizabeth Harris, contrary to the form of the statute,” etc. Defendant demurred, on the grounds, among others, that the indictment does not substantially conform to the requirements of sections two hundred and thirty-seven and two hundred and thirty-eight of the Criminal Practice Act, and that the facts stated in the indictment do not constitute a public offense. The demurrer was overruled, and defendant excepted. The defendant moved for a continuance of the cause to the term next in course on his own affidavit, the material portions of which, as to the diligence exercised by him to procure the attendance of the witness named, was as follows: “ that he cannot safely proceed to trial at this term on account of the absence of Zeke Smith, a material witness for this defendant; that said Zeke Smith is a resident of Sonoma County; that a subpoena was duly issued on the 28th day of June, A. D. 1867, and placed in the hands of the Sheriff of Sonoma County, and has been returned unserved; that deponent expects to be able to procure the attendance of said Smith at the next term of this Court.” The motion was denied, and defendant excepted. On the trial defendant was convicted of the offense charged. A motion for a new trial was made by him, which was denied by the Court, and defendant appealed from the judgment and the order denying said motion for a new trial.