As to the motion in arrest of judgement, the fact on which it was founded, not appearing on the record, this court is of opinion, that it should be overruled.
The circuit superiour court having certified to this court the facts proved at the trial, it might, perhaps, be in the power of this court to direct a new trial, if the circumstances of the case should seem to this court to warrant it. But the court does not think there is any distinction between a violence of this kind, practised upon a female between the age of ten and twelve years, and a similar violence practised upon one above the age of twelve. Both are equally rapes. If this was not so, the chastity of women between the age of ten and twelve years would be very inadequately protected. It is most manifest, that the statute 1 Rev. Code, ch. 158. § 3. p. 585. punishing the deflowering of children under the ago of ten years, does not apply to the case of an attempt to ravish a female of the age of J. B., that is, between eleven and tivelve, at the time the offence was committed of which the prisoner has been convicted. And the statute of 1822-3, ch. 34. <§> 3. enacts, that “ if any slave, free negro or mulatto, shall attempt to ravish a while woman, married, maid, or other,” such offender shall be adjudged guilty of felony, and suffer death &tc.
This court is of opinion, that sentence of death ought to be passed upon the prisoner.