State v. Ward

So much of the indictment as is here important accuses the defendant, Ward, “of the crime of an assault with intent to com*183mit a rape upon Josephine Tolf, committed as follows: The said Ward * * * did in and upon Josephine Tolf, a female ovér the age of ten years, feloniously make an assault, with intent her, the said Josephine Tolf, then and there feloniously to ravish and carnally know by force and against her will, contrary to the form of the statutes.” Section 51, chapter 94, Gen. St. 1878, under which the indictment was found, reads that “whoever assaults any female, with intent to commit the crime of rape, shall be punished by imprisonment.” The indictment is sufficient. It not only follows the language of the statute, but the word “assault” has a well-defined legal meaning, and, in and by itself, is a statement of an act, without the necessity of further detail, and it is therefore sufficient to satisfy the second subdivision of section 1, chapter 108, Gen. St. 1878. State v. Shenton, 22 Minn. 311. The allegation that Josephine Tolf was “a female” was enough, without adding that she was of the human species, which is implied as a matter of course. The indictment is in this respect precisely as certain as the statute defining the offence. See State v. Farmer, 4 Ired. 224.

Whatever may be the law as to the age at which a person is competent to commit a rape, the fact that defendant was under that age (if it existed) was matter of defence, and the indictment need allege nothing upon the subject. Com. v. Scannel, 11 Cush. 547; People v. Ah Yek, 29 Cal. 575.

Order affirmed.