(dissenting). — I dissent; I think with Judges Hoyt and Scott that the information is sufficient. While its construction is awkward, I have no doubt that a person of common understanding could tell from reading it what was intended; that is the object of an indictment or information, and all that is necessary; anything more than that is simply verbiage, and its omission ought not to defeat the ends of justice. But I do not agree with the majority that the court erred in instructing the jury that if the person upon whom the attempt was made was under the age of sixteen years, the fact that she consented to the advances would constitute no defense. I agree with the proposition that there cannot be such a thing as an assault to commit a rape where consent is given; but I think within the meaning of the law no consent can be given where the female is under the age of sixteen years. It is the mental consent that tlie law contemplates, not the physical consent, and the theory of the law is that a female under the age of sixteen years is not of a consenting mind, and therefore cannot consent; or, in other words, the law will not allow her to consent. The judgment should be affirmed.