By the Court,

dissenting. The Court are of opinion, that the verdict must stand and judgment be rendered on it. The law which regards infants under fourteen as incapable of committing rape, was established in favorem vitce, and ought not to be applied by analogy to an inferior offence, the commission of which is not punished with death. A minor of fourteen years of age, or just under, is capable *407of thai kind of force which constitutes an essential ingredient in the crime of rape, and he may make an assault with an intent to commit that crime, although by an artificial rule he is not punishable for the crime itself. An intention to do an act does not necessarily imply an ability to do it; as a man who is emasculated may use force with intent to raw'sh, although possibly, if a certain effect should be now, as it was formerly, held essential to the crime, he could not be convicted of a rape. Females might be in as much danger from precocious boys as from men, if such boys are to escape with impunity from felonious assaults, as well as from the felony itself.

Motion overruled