Rape necessarily includes an assault and battery. To sustain an indictment for assault with intent to commit a rape, under the Gen. Sts. c. 160, § 27, it is not necessary to allege or prove a battery. But a battery may be one of the facts by which the offence is made out. It then constitutes a part, though not an essential part, of the offence which the statute defines and punishes. If not alleged, there is no variance; if alleged, there is no duplicity.
In Commonwealth v. Goodhue, 2 Met. 193, an indictment for rape contained the unnecessary allegation that the offence was committed by the defendant upon his own daughter; and the court sustained a conviction for incest. In Commonwealth v. Squires, 97 Mass. 59, an indictment for rape contained the unnecessary allegations that the defendant was a married man, and that the woman was not his wife. He was convicted of adultery, and, although the objection of duplicity had been seasonably taken before the trial, the conviction was sustained. That allegations of facts connected with the particular offence intended to be charged, and showing that another offence was committed at the same time and by the same acts as set forth, do not necessarily amount to duplicity of pleading, is established by various decisions of this court. Commonwealth v. Eaton, 15 Pick. 273. Commonwealth v. Twitchell, 4 Cush. 74. Commonwealth v. Tuck, 20 Pick. 356. Commonwealth v. Hope, 22 Pick. 1. Common*349wealth v. Nichols, 10 Allen, 199. Commonwealth v. Harris, 13 Allen, 534.
It is also well settled that an indictment for a particular offence may be sustained by evidence which also shows that another and different offence was in fact committed; even though such other offence is of a higher degree of crime. Commonwealth v. Walker, 108 Mass. 309.
The evidence in this case would support an indictment either for an attempt to commit rape, Gen. Sts. c. 168, § 8, or for an assault with intent to ravish. The latter only being charged, the court rightly refused the prayer for a ruling that it could not be supported upon the evidence.
There was no irregularity in the manner of receiving and affirming the verdict. Exceptions overruled.