
    [No. 3854.
    Decided June 18, 1901.]
    The State of Washington, Respondent, v. Floyd Dunlap, Appellant.
    
    ASSAULT WITH INTENT TO RAPE — INFORMATION — ALLEGATION OF PRESENT' ABILITY.
    An information charging defendant with the crime of assault with intent to commit rape upon another is not insufficient by reason of failure to allege defendant’s present ability to carry his intent into execution.
    SAME- — ■ SUFFICIENCY OF SENTENCE INFLICTING PORTION OF PENALTY IMPOSED.
    Where the statute provides that a person convicted of assault “shall be fined in any sum not exceeding $500, to which may be added imprisonment in the county jail not exceeding six months,” the action of the court m sentencing a person convicted of assault to imprisonment for five months, without first imposing a penalty by fine, is not erroneous, as being beyond the jurisdiction of the court to inflict.
    Appeal from Superior Court, Pierce County. — Hon. Thomas Cabboll, Judge.
    Affirmed.
    
      Hugh Farley and A. A. Knight, for appellant.
    
      Fremont Campbell, Prosecuting Attorney, and Walter M. Harvey, for the State.
   The opinion of the court was delivered by

Dunbar, J.

An information was filed against the defendant, charging him with the crime of assault with attempt to commit rape, the charging part of which is as follows:

“That the said Floyd Dunlap, in the county of Pierce, in the state of Washington, then and there being, unlawfully, violently and forcibly in and upon one Mabel Stevens, a female person under the age of 18 years, to-wit: of the age of 9 years, did make an assault, with intent then and there ■unlawfully and feloniously to ravish and carnally know the said Mabel Stevens, contrary,” etc.

A demurrer was interposed to the information, to the effect that the facts charged did not constitute a crime. The demurrer was overruled and a trial had, which resulted in the following verdict by the jury:

“We, the jury in the case of the State of Washington, plaintiff, v. Floyd Dunlap, defendant, find the defendant guilty of assault.”

A motion in arrest of judgment was made on the grounds (1) that the facts stated in the information did not constitute the crime or misdemeanor for which a verdict of guilty was brought in by the jury; (2) that there was no information upon which to base a verdict of guilty of assault; (3) that the defendant had been found guilty’ of an offense with which he had never been charged; and (4) that the defendant had been found not guilty of the offense charged. The motion was overruled and the following judgment was pronounced:

“Ordered, adjudged, and decreed that the said defendant, Floy'd Dunlap is guilty’ of the crime of assault, and that he be punished therefor by confinement in the county jail for the term of five months.”

Two points are discussed by the appellant: First, that the court should have granted’the defendant’s motion in arrest of judgment, and discharged the defendant; second, that the sentence is void, as beyond the jurisdiction of the court- to inflict. It will be observed that the first point embraces, also, the question raised by the demurrer. Appellant’s objection to the information is that is does not appear therefrom that the defendant had the ability to carry the attempt into execution, and it is claimed that the ability to cany the attempt into execution is the condition which makes the attempt punishable as an assault. This question was inferentially decided against the contention of the defendant in State v. Ackles, 8 Wash. 462 (36 Pac. 597), and directly by this court in State v. Levan, 23 Wash. 547 (63 Pac. 202), where it was held that an indictment for assault with intent to commit murder which charged the defendant in the following words: “An assault did make in and upon the person of the said,” etc., was not insufficient for failure‘to charge defendant’s present ability to carry his intent into execution; and where the court in its opinion said: “It would seem that ability to carry such attempt into execution is to be presumed from the use of the term ‘assault.’ ”

On the second proposition it'is claimed that, inasmuch as the statute provides that the person convicted of assault “shall be fined in any sum not exceeding $500, to which may be added imprisonment in the county jail not exceeding six months,” the court was not warranted in imposing the penalty of imprisonment without first exhausting the fine provided by the statute. Ho objection was made to the penalty at the time it was imposed, the trial court’s attention was not called to the alleged invalidity of the judgment, and it was not given an opportunity to correct its judgment, if it needed correction. But, in addition to this, the court did not exceed the limit of punishment prescribed by the statute and therefore did not exceed its jurisdiction in pronouncing judgment. The defendant is not in a position to complain because the court did not impose as heavy a penalty as it might have imposed under the si atute.

The information being sufficient and the judgment being authorized by law, the same is affirmed.

Reavis, C. I., and Bullerton, Mount, White and Hadley, JJ., concur.  