
    [Lancaster,
    May 17, 1824.]
    STOUT against The Commonwealth.
    IN ERROR.
    An assault and battery, with intent to commit a rape, being a misdemeanor only, the omission of the word, feloniomly, does not vitiate an indictment for such an offence.
    In an indictment for a misdemeanor, the day and place named in the beginning, refer to all the ensuing-acts, and need not be repeated.
    Tbe plaintiff in error, William Stout, was tried in the Court of Quarter Sessions of Dauphin county, on the following indictment:
    
      “ The grand inquest of the Commonwealth of Pennsylvania, inquiring for the county of Dauphin, on their oaths and solemn affirmations, respectively, do present, That William Stout of the county aforesaid, yeoman, on the seventeenth day of January, in the year of our Lord, eighteen hundred and twenty-four, at the county aforesaid, and within the jurisdiction of this court, in, and upon Sally Cassel, spinster, in the peace of God, then and there being, with force and arms, an assault did make, with an intention to ravish, and carnally know the said Sally Cassel, and the same Sally Cassel did beat, wound, and evilly treat, so that her life was greatly despaired of, and other harms to her, then and there did, to the great damage of the said Sally, and against the peace and dignity 'of the Commonwealth of Pennsylvania.”
    
    The jury found a verdict of guilty, and the court sentenced the defendant to pay a fine of twenty dollars.
    On the return of the record to this court by writ of error, Harris, for the plaintiff in error, contended,
    1. That the indictment being for an assault and battery, with an intent to commit a rape, the want of the word, feloniously, was fatal. Wherever one is charged with, an assault, with an intent to commit a felony, the felony must be properly described. 3 Chitty, C. L. 812, 815, 816. Commonwealth v. Barlow, 4 Mass. JR, 439. 1 East. 411.
    2. The indictment Was defective in omitting the statement of time and place, as to the battery. The words, then and there, should be repeated in reference to every material and issuable fact.. 1 Chitty, 168,192, 219, 220,
    3. The indictment is further defective, because it did not state, that the attempt to ravish, was made violently, and against the will of the person on whom it is alleged to have been made. 1 Chitty, C. L. 810,
    
      Douglass, for the Commonwealth,
    cited on the first point, Addison’s Rep. 140. Purd. Dig. 236. 2 Hawk. 326, 332, 625. 1 East, 415. 1 Starky, 85. 1 Chitty, 168, 232.
    
      On the second point, he cited, 2 Hawk, 263, 335. Cro. Car. 271, 525.
   The opinion of the court was delivered by

Duncan, J.

The errors assigned are to the indictment.

1. That it does not lay the intention to ravish feloniously.

2. That it is defective in allegation of time and place as to the battery.

The crime here was the assault and battery, the intention is only matter of aggravation. Rogers v. The Commonwealth, 5 Serg. & Rawle, 464. It is an aggravation of the misdemeanor,' and not a description of the offence. If the intent ion to commitlhe crime was made afelony, then indeed this exception oughtto be raised; buttheindictment properly describes the offence as atrespass. The punishment, inflicted is, not corporal punishment, but a mere pecuniary fine. The offence laid is a tre. pass, and the fine is for a trespass. The felonious intention not being properly laid, it is fair to presume, that the court, from the mildness of the sentence, rejected this aggravatory matter, as not being properly laid. For we never can suppose, that for the atrocious offence of an assault and battery, with an intention to ravish, the court would' have sentenced the culprit only to pay twenty dollars.

The second exception, had this been a felony, would have been fatal. Leaving out the intention, the indictment would run thus: That the said William Stout, on the I7th January, 1824, at the county aforesaid, made an assault on the said Sally Cassel, and the said Sally Cassel did beat, wound, and evilly treat, &c. In an indictment for a misdemeanor, the day and place named in the beginning, refer to all the ensuing acts. Thus, an indictment against A. alleging, that at such a time and place, he made an assault upon one B., and beat the said B., without saying then and there, was held sufficient. So it has been holden, that in an indictment for forcible entry, it would be sufficient to say, quod primo M, intravit et ipsum disseisivit, without the ad tunc et ibidem. Bande’s Case, Cro. Jac. 41. Dyer. 69.

The judgment is therefore affirm jd.  