Walters

The plaintiff in error, a man of 51 years, was convicted of an assault with intent to commit rape upon the person of a female child of the age of 6 years, and was sentenced to be imprisoned in the penitentiary for a term of 15 years.

Error is assigned to the refusal of the court to grant the instruction requested by the defendant as follows:

“The jury are instructed that, in order to convict the defendant of an assault to commit rape, the jury must be satisfied beyond a reasonable doubt from the evidence that the defendant assaulted Hester Quiner with the intent at the time to overcome any resistance that might be offered by her.”

It is the rule established by the decided preponderance of the'authorities and by sound reason that in the case of an assault to commit rape upon a female under the age of consent it is not necessary to prove want of consent, for the reason that in law she cannot consent to such an assault. Cyc. 1434; Bishop’s New Criminal Law, par. 1120; State v. Sargent, 32 Or. 110 , 49 P. 889 ; People v. Roach, 129 Cal. 33 , 61 P. 574 ; State v. Johnson, 133 Iowa, 38 , 110 N.W. 170 ; Commonwealth v. Roosnell, 143 Mass. 32 , 8 N.E. 747 ; Liebscher v. State, 69 Neb.…