The opinion of tlio Court was delivered by
Manning, J.The defendant was convicted of an assault with intent to commit a rape and was sentenced to twenty-tliree months’ confinement at hard labour.
After the evidence was closed the District Attorney moved to amend the indictment by inserting the year 1884 in the blank, thus conforming the indictment to the proof,'to which the defendant reserved a bill.
Among the many beneficial amendments of criminal practice made by our statutes is that which enacts that no indictment for any of-fence shall be held insufficient for omitting to state the time at which the offence was committed unless time he of its essence, nor for stating-the time imperfectly or on a day subsequent to the date of the indictment or an impossible day. Rev. Stats, sec. 1063. And when objection is made to any defect in the indictment apparent on its face the court is autorized to amend it forthwith. Ibid. sec. 1064.
The provisions amply justify the amendment complained of. State v. Williams, 31 Ann. 146; State v. Johnson, 35 Ann. 842.
*62The motion in arrest is for duplicity in that two separate and distinct offences are charged in one count. The charge is that the defen■dant “violently, maliciously and feloniously did make an assault upon the person of one Althea Dubois with the intention her, the said Althea Dubois, then and there violently, maliciously and against her will, to ravish aud carnally to know, and further that said Fouteuette, her, the -said Althea Dubois, then and there did beat aud illtreat aud other wrong to her did, contrary, etc.”
The defendant’s contention is that with the more serious charge there is coupled another of assault and batteiy.
The objection is not well taken. Our statute is very succinct — whoever shall assault another * * with intent to commit rape shall, etc. Rev. Stats, sec. 792. The crime has to be construed according to the common-law and we look to the common-law for the form of the indictment unless our own statutes have otherwise ordered. Rev. Stats, sec. 976. The common-law form usually charges the assault with the addendum of “beat and ill-treat” before the charge of rape aud is the better way, 1 Archbold Cr. Pr. and Pl. 1011, though it is sometimes charged as in this indictment. Wharton’s Precedents, 127-8.
The crime charged is not committing a rape, which is a distinct of-fence punishable with death. Rev. Stats, sec. 787. It is an assault with intent to commit the more heinous crime and the assault must therefore be charged. Even if a battery be charged as well as an assault, as was done in this indictment, it is not bad for duplicity because ■the battery is part of the assault. I.t is the act or one of the acts of -the accused done at the moment he was endeavoring to carry out his .intent to commit the rape.
Judgment affirmed.