The State versus Fielding.
Where an offence is, by law, made more highly punishable, if committed upon a person of a particular class, than if committed, upon a person of another class, an indictment for the offence may be maintained, though, it do not specify to which of the classes, the injured person belongs.
Upon a conviction on such an indictment, the milder punishment only will be-awarded.
Indictment for an assault upon one Joanna Roberts, with intent, her the said Joanna Roberts feloniously to ravish and carnally know by force and against her will.
The defendant moved the court to quash the indictment, because it does not set forth whether said Joanna was of the age of ten years, or under that age. The motion was refused, and the defendant filed exceptions.
The defendant also moved in arrest of judgment.
Morrill, for the defendant.
It was essential to allege in the indictment what was the age of Joanna. If under ten years, the punishment must be in the State’s prison; if over that age, it may be in the State’s prison or in the county jail. It cannot, therefore, be known what punishment to inflict.
Vose, County Attorney, for the State.
Wells, J.,
orally.—The offence may have been one, to which the greater of the penalties mentioned by the. counsel should attach; and it may have been one to which the less penalty should attach.
Of one or of the other, the defendant is guilty. He cannot complain of a decision which should hold him for the minor offence, and of that offence he is adjudged guilty.
Exceptions overruled.
The argument. in support of the motion in arrest, is, that Joanna Roberts is not alleged to be a female. But the name is that of a female, and in the indictment she is twice spoken of as a female; by the use of the feminine pronoun.
Motion overruled.