delivered the opinion of the Court.
Samuel J. McComas was indicted"at the July term, 1847, of the Criminal Court for the county of St. Louis, under the 26th section of the second article of the law concerning crimes and their punishments, R. C., 1845, p. 348. Upon a trial in said court he was found guilty and sentenced to three years imprisonment in the Penitentiary. He first moved in arrest of judgment, and his motion' being overruled, he then moved for a new trial, which being also overruled by the court, he excepted, and prayed an appeal to this Court, which was granted.
The indictment charges that the defendant late, &c., with force, &c., at, &c., in and upon one Mary L. Young, being then and there a female child under the age of ten years, to-wit, ,cf .nine years, in the peace of the State then and there being, carnally, unlawfully and feloniously, did then and there make an assault, and her, the said Mary L„ Young, then and there did beat, wound and ill-treat, with the intent, her, the said Mary L. Young, then and there carnally, unlawfully and feloniously to ravish, and carnally and feloniously know, and other wrongs to, &c.
The section of the statute above referred to declares or defines rape to be, first, carnally to know any female child under ten years of age; or secondly, forcibly ravishing any woman of the age often years or upwards. The words “rape” and “ravish,” are used here as in common parlance as synonymous terms, and the only difference in the statute, between the two species of the offence, is, that the latter contemplates force, whilst the former may consistin the act of sexual intercourse alone — irrespective of actual violence or consent. The indictment charges the assault to *118have been made “with the intent, her, the said Mary L. Young, then and there carnally, unlawfully and feloniously to ravish, and carnally and feloniously know,” which not only embrace all the words used in the statute to designate the offence, but others not necessary, but the use of which do not vitiate the indictment and may be rejected as surplusage.
The attorney for the defendant has not directed our attention to any supposed defect in the indictment, and the foregoing is the only one noticed by the Attorney General for the State.
We observe from the record that after the finding by the jury, the defendant moved in arrest of judgment, and then moved to set aside the verdict and grant a new trial. The motion in arrest presupposes the verdict is right, but that judgment should not be entered thereon, because of some defect in the indictment, and thus the question is brought up which we have been considering. If the practice was1 now to be settled for the first time, it might be difficult to assign any very good reason for permitting a defendant after he had pleaded to an indictment, and after a trial had before a jury, to take advantage of a defect in the indictment. If the indictment is insufficient, the proper time to take exception would appear to be before plea and trial, by a motion to quash.
The record further shows that there was evidence from which the jury might have found the defendant guilty, and it was their province to weigh it and give to it that credit which it was justly entitled to, and this duty ihe jury were more competent to perform than this Court.
There were a number of instructions given by the court, and some refused which were asked by the defendant, but no exception was taken either to the giving or refusing instructions. We have, however, examined them and find that those refused are embraced substantially in the instructions given.
Wherefore we are of opinion that the judgment of the Criminal Court ought to be affirmed,
and Judge Napton concurring,the same is affirmed.
Scott, J., did not sit in this case.