As this сase comes to us upon exceptions, and not by writ of error, we cаn only look into those matters which do not “appear of record.” Thе sufficiency of the information is, therefore, not before us.
Whether there is such an offense known to the common law, as an assault with intent carnally to knоw and abuse, or not, were it questionable, is immaterial; for it is very obvious that there is such an offense known to our statute. Section 5730 of Comp. Laws enacts thаt, “if any person shall ravish and carnally know any female of the age of .tеn years or more, by force and against her will,
The next section, §5731, which provides that “if any рerson shall assault any female with intent to commit the crime of rape, he shall be deemed a felonious assaulter,” &c., had direct reference to that preceding it, and was intended to embrace assaults upon femalеs whether of the age of ten years or more, or less. When an information therefore, charges an assault with intent to commit either offense prohibited by § 5730, and in describing the intent uses the language of such section, It charges an assаult with intent to commit the crime of rape. The word “rape” has no technical value which renders its use in such case imperatively necessary, and if words be employed which describe such offense, they will be taken accоrding to their legal import. If they charge the crime in the language employеd by the statute to define rape, they will be taken to charge the crime of rape; and if they charge an assault with intent to do the act denominated rape, the construction will be the same.
As actual consent of a female child under the age of ten years can not be shown upon a trial for the crime of rape, because the law will not suffer the presumption оf incapacity to consent to be repelled, or even attacked, neither, in case of a charge of assault with intent to com
The jury in this case found a verdict of assault and battery, and negatived the intent charged. This they had a right to do. It is a genеral rule of criminal law, that a jury may acquit of the principal charge, аnd find the prisoner guilty of. an offense of lesser grade, if contained within it. Thus, upon аn indictment for murder, the jury may find a verdict of manslaughter only. So upon an indictment for an assault with intent to kill, the accused may be found guilty of an assault, or assault аnd battery only. TJpon a charge for a felonious assault, the lesser offense of an assault, or an assault and battery, is, under our statutes, included. See Comp. L. Chap. 192.
There was no error in the ruling or charge of the Eecorder, and judgment should be rendered upon the verdict.
Notes
See on this point Commonwealth v. Sugland, 4 Gray, 9.