DISSENTING OPINION OF
QUARLES, J.The indictment in this case, in my opinion, failed to state any crime or offense against the defendant, failing to state the intent with which the defendant committed the acts charged against him, did not allege the offense described and forbidden by section 3897, R. L. The words contained in that statute, to wit, “without committing or intending to commit the crime of rape” are descriptive of the crime, a new one, created by such statute. The indictment did not charge a simple assault, as defined in section 3874, R. L., in that there is no allegation of “a malicious attempt forcibly to do a corporal injury to another without authority or justification by law.” It did not allege the acts which constitute a crime under section 3896, R. L., in that it failed to allege a malicious assault with intent to commit the crime of rape and did not allege that defendant “maliciously” assaulted any female child under the age of twelve years with intent to ravish or carnally abuse such child. It did not state an offense under section 3897, R. L., the statute under which this prosecution was evidently instituted, in that the indictment was wholly silent as to the intent of the defendant. The offense created by section 3897, R. L., is a revolting one, and one which should be subject to severe punishment, and the legislature has very properly prescribed the same punishment for the offense *781created by this statute as is prescribed for an assault with intent to commit rape. Nevertheless it is such an old and established principle of criminal procedure that an indictment against an accused must state with particularity all of the essential elements and ingredients of the crime charged against him that it would seem unnecessary to discuss this rule. In the crime of indecent assault, defined and prescribed by section 3897, R. L., as well as in the crime of assault with intent to ravish, defined and forbidden in section 3896, R. L., the question of intent is a material and necessary ingredient. - In the one case the intent to commit or attempt to commit the forbidden act must exist; in the other the intent not to commit the crime of rape must exist. The indictment in this case fails to charge the felony defined in section 3897, R. L., in that the intent with which the acts alleged were done is entirely omitted, and the words “without committing or intending to commit the crime of rape” are a necessary part of the description and are descriptive of the new crime created hy this statute enacted in 1911.
When intent is made a part of the definition of the crime it is one of the ingredients of such crime and such intent must he alleged in the indictment else the indictment does not state an offense. State v. Bacon, 7 Vt. 219, 222; United States v. Gleason, Woolw. 75, Fed. Cas. 15,215; People v. Lohman, 2 Barb. 216, 218; Brittin v. State, 5 Eng. (10 Ark.) 299; Sarah v. State, 28 Miss. 267; State v. Gove, 34 N. H. 510; State v. Freeman, 6 Blackf. 248; State v. Drake, 1 Vroom 422; Morrow v. State, 10 Humph. 120.
“Where the intention is made a material ingredient in the offense, it is always necessary to allege it.” State v. Ullman, 5 Minn. 1, 5. And to the same effect see also the following authorities : Johnson v. State, 1 Tex. App. 146; Howard v. State, 8 Tex. App. 447; Drake v. State, 19 Ohio St. 211, 217; State v. Malloy, 5 Vroom 410; Wood v. State, 46 Ga. 322; 1 Arch. *782Or. Prac. & PL (7th ed., 1860), 282-285 and authorities cited in notes.
“The general rule in reference to an indictment is that all the material facts and circumstances embraced in the definition, of the offense must be stated, and that, if any essential element, of the crime is omitted, such omission cannot be supplied by intendment or implication. The charge must be made directly and not inferentially or by way of recital. United States v. Hess, 124 U. S. 483, 486. * * * This indictment does not in terms aver that it was the purpose of the conspiracy to violate the injunction referred to or to impede or obstruct the due administration of justice in the circuit court; but it states, as a legal conclusion from the previous allegations, that the defendants-conspired so to obstruct and impede * * * but the indictment nowhere made the direct charge that the purpose of the conspiracy was to violate the injunction or to interfere with the proceedings in the circuit court.” Pettibone v. United States, 148 U. S. 197, 202, 203. The court held that the indictment did not state an offense.
“So far as relates to the charge of felony, there is no allegation that the defendant used the means to procure the abortion with intent thereby to destroy the child. * * * That is a part, and, as we deem it, an essential part of the definition of the offense contained in the Act of 1846. When a particular intent accompanying an act is requisite to constitute a crime it should be averred in the indictment.” People v. Lohman, 2 Barb, at p. 218, citing 6 East. Rep. 473, 4; 1 Chit. Cr. Law 233.
“It is a well established general rule of criminal pléadingin relation to offences created by statute, that where the words of the statute are descriptive of the offence, the indictment must-follow, substantially at least, the language of the statute, and expressly charge the respondent with the commission of the offence as described, or it will be defective. The respondent-must be brought within the material words of the statute, and *783nothing will be taken by intendment. Wharton’s Cr. Law, 185, and authorities; 1 Chitty’s Cr. Law, 281, 2, 3; 1 Archb. Cr. Plead. 50; People v. Allen, 5 Denio 76. * * * Where a particular intent is essential to constitute a crime that intent must be distinctly alleged in the indictment. People v. Lohman, 2 Barb., S. C. 216; Gabe v. State, 1 Eng. 519; Commonwealth v. Morse, 2 Mass. 128.” State v. Gove, 34 N. H. 510, 515. To the same effect see United States v. Staats, 8 How. 41, 44; United States v. Carll, 105 U. S. 611; Evans v. United States, 153 U. S. 584, 594; United States v. Britton, 107 U. S. 655, 669; Spurr v. United States, 174 U. S. 728, 735.
“The particular intent must, therefore, be left to the jury to be determined by all the facts in the case, and should not in this case be given to them as a legal presumption. It must be remembered that this act is only criminal if done with a particular intent, and that intent must, therefore, be alleged and proved according to all the terms of the statute.” State v. Malloy, supra, citing Commonwealth v. Dana, 2 Metc. 329; Miller v. People, 5 Barb. 203; Commonwealth v. York, 9 Metc. 93; 1 Arch. Prac. & Pl. 119-121; 3 Greenl. Ev., Sec. 13; 1 Stark. Ev., 524. These authorities hold that the intent must be proven, but that it may be proven by proof of the actions and surrounding circumstances of the defendant.
“It is a general principle of evidence that a man shall be taken to intend that which he does, or which is the immediate and natural consequence of his act. ■ But where an act in itself indifferent becomes criminal if it be done with a particular intent, then the intent must be alleged and proved. The intent in the present case was a material ingredient in the offense, and was a question of fact, under all the circumstances, for the consideration of the jury. It was for them to find whether there had been an intentional, wanton and indecent exposure of the persons of the defendants, at such a time and place, and in such a manner, *784as to offend against public decency.” Miller v. People, 5 Barb. 203.
The trial court erred, in my opinion, in refusing to instruct the jury to find for the defendant on the ground that the evidence showed that the defendant was not guilty of talcing “indecent and improper liberties with the person” of one Maria Lau Chong, an unmarried “female child under the age of twelve years, without committing or attempting to commit the crime of rape.” The indictment failing to allege an essential ingredient in this statutory crime, stated no criminal offense against the defendant and he was, in my opinion, entitled to be discharged, and the court should have given the request for an instructed verdict.
The evidence shows conclusively that the defendant did not commit the crime of indecent assault, as defined in section 3897, R. L., but did commit the crime of assault with intent to ravish, as defined in section 3896, R. L. Now by section 3898, R. L., the legislature has provided that under an indictment charging rape or carnal abuse of a female child under twelve years of age, or charging assault with intent to commit either of such offenses, the jury may find “the defendant guilty of an indecent assault if the facts so warrantNow the facts to warrant conviction of an indecent assault must show that it was committed without committing rape, and without intending to commit rape. The two offenses are of a diverse nature. The intent necessary to create the one proves conclusively that the other was not committed. In the one the intent to commit rape must exist; in the other the intent not to commit rape must exist. The words of the statute, “without committing or intending to commit' rape,” are descriptive and definitive of the very nature of the acts constituting the offense and do not constitute an exception to a general rule prescribed by the statute, but are of the essence of the general rule applicable to all persons committing the acts forbidden by the statute. ■
*785I am unable to concur in tbe majority opinion wherein it holds that the question of intent is immaterial, as I understand it to hold. What the legislature said, and evidently intended to say, is, that where a defendant is prosecuted under an indictment charging rape, carnal abuse of a female child under twelve years of age, or assault with intent to commit rape, if the facts showing an indecent assault are proven but the proven facts and circumstances do not show intent to rape or carnally abuse the female child upon whom the assault is allaged to have been made, the defendant may be convicted of indecent assault. The legislature has nowhere provided that under an indictment charging an indecent assault the defendant may be convicted of rape or carnal abuse of a female child under twelve years of age, or of an assault with intent to commit either of such crimes. That is what has occurred in this case, without warrant of law, in my opinion. It would be just as reasonable to hold that a man charged with assault might be convicted of homicide as it is to hold that a man charged with an indecent assault may be convicted of an attempt to commit rape.
The offense shown by the evidence in this case to have been committed by the defendant constitutes a heinous crime against good morals, decency and the best interests of society and merits severe punishment. Nevertheless, the defendant in this, as in all other cases, should be lawfully convicted according to established rules of law and procedure. In my opinion the judgment should be reversed and a new trial granted.