We think it entirely clear, that the evidence at the trial of this case fell far short of proving any intent by the prisoner to have carnal knowledge of the prosecutrix by force and against her will. There was ample proof of gross indecency and lewdness, and of an attempt, by long continued and urgent solicitations and inducements, to lead the prosecutrix to consent to the wish of the prisoner to have sexual intercourse with her. These facts would have been sufficient to warrant a *417jury in finding the prisoner guilty of an assault. 1 Russell on Crimes, (7th Amer. ed.) 752. But there was an entire absence of all evidence of the use of force. There was proof of no act of violence, no struggle, no outcry, and no attempt to restrain or confine the person of the prosecutrix, which constitute the usual, proper and essential evidence in support of a charge of an intent to accomplish a felonious purpose on the body of a female by force and against her will. The gist of the aggravated charge laid in the indictment against the prisoner was the intent to ravish.
In many cases, as in the familiar instance of a charge of breaking and entering with intent to steal, proof of the actual commission of the larceny is decisive proof of the intent with which the entry was made. The overt act leaves no room for doubt as to the felonious purpose with which the previous criminal act was perpetrated. But the case at bar is a very different one. The act itself, which, if committed, would be decisive proof of the intent, was never consummated, and, if it had been, would have constituted a higher crime than that charged in the indictment. The nature of the charge presupposes that the intent of the prisoner was not carried out. It is therefore necessary that the acts and conduct of the prisoner should be shown to be such, that there can be no reasonable doubt as to the criminal intent. If these acts and conduct are equivocal, or equally consistent with the absence of the felonious intent charged in the indictment, then it is clear that they are insufficient to warrant a verdict of guilty.
The facts in the present case resemble those proved in Rex v. Nichol, Russ. & Ry. 130, where it was shown that a teacher took very gross and indecent liberties with a female scholar under his control, of tender years, without her consent, and it was held that he was rightly convicted of an assault, but not of an intent to ravish. So in the present case, the jury should have been instructed that there was no sufficient proof to maintain the charge against the defendant of an assault on the prosecutrix with a felonious intent to have carnal knowledge of her by force and against her will. As the case was left by the court to *418the jury under the instructions which were given them, they were at liberty to infer that the evidence was sufficient to warrant them in finding the defendant guilty of the aggravated charge. This, we think, was erroneous. The omission to instruct the jury in a criminal case that the evidence does not prove the offence laid in the indictment is good ground of exception. Commonwealth v. Packard, 5 Gray, 101.
It was urged by the attorney general that the defendant could not avail himself of the objection that the verdict was not supported by the testimony, because this court cannot, on a bill of exceptions, set aside a verdict as against the evidence ; and for the further reason that it does not appear that any special instruction was asked for by the defendant at the trial concerning the nature or amount of evidence necessary to sustain the entire offence laid in the indictment. These would have been decisive objections, if, as is usually the case, the whole evidence submitted to the jury had not been fully set out in the exceptions as allowed by the judge and presented to this court. But in the present case the judge is careful to state that the exceptions contain “ a statement of all the evidence of the acts done by the defendant at the time of the alleged assault,” and to add the instructions which he gave to the jury on this evidence. By these it appears that he left it to the jury to determine whether the entire aggravated offence alleged in the indictment was supported by the proof. The case before us therefore distinctly presents the question whether proper instructions were given as to this part of the case upon the facts as proved. By allowing the bill of exceptions in this form, it is fair to infer that the judge intended to bring before this court the correctness of his rulings, and the defendant has a right to ask an adjudication upon them. Chase v. Breed, 5 Gray, 443, 445. Exceptions sustained.