
    Butler v. The State.
    Appeal from the City Court of Montgomery.
    Tried before the Hon. A. D. Sayre.
    
      W. W. Pearson, for appellant.
    Charles G. Brown, Attorney-General, for the State.
    
      The appellant was indicted and tried for an assault with intent to ravish, was convicted of an assault and battery, and sentenced to hard labor for the county. The indictment charged that “Walter Butler did assault Delia McCall, a woman, with the intent forcibly to ravish her.” The evidence introduced on the part of the State showed that the person alleged to have been assaulted was a girl 11 years of age. The defendant moved the court to exclude from the jury all the testimony on behalf of the State, upon the ground that there was a variance between the. indictment and the evidence, in that the indictment charged an assault upon Delia McCall “a woman,” and the evidence showed without conflict that Delia McCall was not “a woman.” The court overruled this motion, and to this ruling the defendant duly excepted.
    The defendant asked the court to give to the jury the following written charge, and separately excepted to the court’s refusal to give it as asked : “Unless the jury believe from the evidence that; Delia McCall had reached the age of puberty there can be no conviction in this case.” These two rulings are the only questions reserved for consideration on this appeal.
    The judgment is affirmed on the authority of Vassar v. State, 55 Ala. 264; Meyer v. State, 84 Ala. 12.
   Opinion by

McClellan, C. J.  