
    Commonwealth versus Eli Green.
    Aji mfant under the age of fourteen years may be indicted for an assault with inten u commit a rape.
    At May term 1823, in the county of Hampden, the prisoner, an infant under the age of fourteen years, was convicted of an assault with intent to commit a rape.
    And now, upon a motion in arrest of judgment, E. H. Mills and G. Bliss junior, for the prisoner, contended that it was clear from all the authorities, that an infant under that age is presumed by law to be unable to commit a rape; 1 Hale’s P. C. 630 ; 4 Bl. Com. 212; 1 East’s P. C. 446, § 8 ; and in 3 Chit. Cr. L. 811, it is said that no evidence will be admitted to implicate him as the actual ravisher, though he may be guilty as an abettor. It would be absurd then to say that he may be indicted for an attempt to do what the law presumes him incapable of doing. Suppose an assault by a man upon another man dressed in woman’s apparel ; an indictment charging him with an assault with intent to commit a rape could not be sustained. So a female could not be indicted for an assault with such an intent. An indictment for throwing oil of vitriol with intent to burn a person’s clothes, might be good ; but not so of an indictment for throwing water with such an intent. If a woman were indicted for petty treason, and it should appear that she had not been married, she could not be convicted. A man cannot be convicted of a rape on his own wife, nor of attempting to commit one, because the matrimonial consent cannot be retracted. In like manner, the prisoner cannot be convicted of a rape, nor of an attempt to commit one, because the law presumes him to be incapable. To constitute an offence, there must be an intent coupled with an act, and likewise a legal ability to do the thing attempted. In regard to the physical powers of the prisoner, the court cannot go into the inquiry whether here is a particular exception contrary to the general rule of law. We do not contend that the prisoner may not be punished for the assault, but only that he is not indictable for an assault with the intent alleged in this indictment
    
      
      Davis (Solicitor-General) for the commonwealth.
    The maxim, that an infant under the age of fourteen years is presumed unable to commit a rape, is indeed found in the books. It originated in ancient times, and it requires to be subjected to the examination of a modern judicial tribunal. That no evidence shall be admitted to impeach this presumption, is the dictum of one writer only, and it cannot hold universally. In some cases an infant under fourteen years is phys"cally able, and there was evidence of it in the present case ; it would be absurd then by such presumption to shut out the fact itself. The maxim is founded on the principle, that there must be both penetration and emission; but this idea is now exploded. 1 Hale’s P. C. 628 ; 3 Inst. 59, 60 ; 1 East’s P. C. 436, § 3 ; 1 Russell on Crimes, 805. In Pennsylvania v. Sullivan, Addis. 143, it is said that the essence of the crime is the violence to the person and feelings of the woman. An injury to the feelings may be inflicted by a person under fourteen years, as much as by one over that age ; and where there is a guilty intention in the perpetrator of the injury, there seems to be no good reason for exonerating him from punishment on account of his physical incapacity.
    Mills, in reply, said .the law was not clear as to what facts are necessary to constitute the crime of rape, and in addition to the authorities before cited to this point, he referred to 12 Co. 37 ; 1 Hawk. P. C. c. 41, § 3.
    
      
       See Rex v. Cosins, 6 Carr. & Payne, 351 ; Rex v. Gammon, 5 Carr. & Payne, 321 ; Rex v. Cox, 5 Carr. & Payne, 297 ; S. C. Moody’s Crown. Ca Reserved, 337 ; Rex v. Jennings, 4 Carr. & Payne, 249 ; Rex v. Reckspear, Moody’s Cr. Ca. Res. 342. These cases turn on the construction of 9 Geo. 4, c. 31, § 16,18. See 1 Chit. Gen. Pract. 39 ; State v. Le Blanc, 1 Const. Rep. 354 ; Pennsylvania v. Sullivan, Addis. 43 ; Roscoe’s Crim. Ev. 709, 710.
    
   By the Court,

Parker C. J.

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 of 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  