Verdegreen

Defendant was convicted of an assault with intent to rape, and was sentenced to a term of years in the state prison. He appeals from the judgment.

1. The evidence disclosed that the object of the alleged assault was a girl of the age of seven years; that she went voluntarily to the room of defendant, and submitted, without resistance, to his advances. Upon this evidence defendant requested the court to charge the jury that: “ In an assault with intent to commit rape there must not only be an intent to commit a rape, but that intent must be manifested by an assault upon the person intended to be ravished. The law requires both ingredients, and neither can be dispensed with. An assault implies force upon one side, and repulsion *213 or want of assent upon the other. An assault upon a consenting.female, young or old, is a legal impossibility. Although a child under fourteen years of age is incapable of giving a legal consent, yet if she gives an actual consent, there can be no assault. In a word, a child under fourteen years of age cannot legally consent to rape upon her, yet she may consent to an act with intent to commit it; and such attempt or act, if committed with her consent,…