delivered the opinion of the Court:
The offense of rape as defined in the Code is: “Whoever has carnal knowledge of a female forcibly and against her will, or carnally knows and abuses a female child under six*22teen years of age, shall,” etc. Sec. 808 [31 Stat. at L. 1322, chap. 851]. An assault with intent to commit rape is punishable under sec. 803.
The indictment, it will be observed, did not charge the age of the child assaulted, but that the offense was with intent to have carnal knowledge forcibly and against the will of the person assaulted.
The first three assignments of error relied on (2, 3, and 1) are that the court erred in overruling a motion to direct a verdict for defendant on the ground of variance between the allegation and proof; in holding that it was proper to permit the case to go to the jury on the evidence offered by the government; and that the evidence justified a verdict.
These are founded on exceptions taken before the defendant offered evidence.
The argument in support of the exceptions proceeds upon the assumption that there was no. assault proved, and that, having alleged force and want of consent, both must be proved.
The assumption is not supported by the record. The court did not permit the jury to find that force was not necessary because the child was under the age of consent; and it is not necessary to determine whether under an indictment charging an assault to carnally know a female with force and without her consent, which does not charge her age as being under the age of consent, a conviction can be had without proving force and want of consent as a fact.
The court charged the jury that there must be an assault, and that it was made with the intent to hare carnal knowledge of the female; both should be proved beyond a reasonable doubt.
He said: “If the defendant took the girl, put her upon the table, and took down her ‘paddies,’, and exposed her person, that would be an assault. The next question would he whether it was with the intent charged; that is, to hare carnal knowledge of her. Now carnal knowledge implies penetration ■ of ■the female organ hy the male organ to some extent; And the question is not whether he did puncture, because the evidence *23shows that he did not, as the government admits; but whether, when he made the assault, if he made it, he made it with intent to have carnal knowledge of the child, as far as her condition of age would permit; whether that was the intent with which he made the assault upon her; and if the evidence satisfies you beyond a reasonable doubt that that was the intent with which he made the assault at the time, then that element is proved.
“However much he may have failed to accomplish that purpose, and for whatever reason he may have failed,- — whether it was because he could not, or because he abandoned it, or because satisfied before he got to that point, or whatever the reason may have been, — if, when he made the assault, it was with that intent, then the crime is made out. And, of course, you have to decide that question from all the circumstances in the case, all the evidence in the case that bears upon the question of the intent he had when he made the assault; but, of course, that is assuming you find, beyond a reasonable doubt, from the evidence, that ho made the assault. It is claimed here that he did not make the assault, did not make any assault at all; and you will not reach the question which I have just been speaking of unless you do become satisfied beyond a reasonable doubt, from the evidence in the case, that he did make an assault upon her.”
The charge of the court was applicable to the evidence, and fairly submitted the question of assault and intent to the j<iry-
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_ The fifth assignment of error is on the refusal of the following instruction requested by the defendant: “6. That they should weigh the testimony of children of immature age carefully; that they are easily led to believe that things others in authority over them say are true.”
The error, if any was committed in the refusal of this instruction, was cured by the following paragraph of the charge: “I am asked to say something to you with reference to the testimony of the child. Of course, she is of tender years, and the testimony of a child of those years ought always to be weighed with caution, and tested, in .all.possible ways by the-other evi*24deuce aud circumstances and facts in the case. The law does not say that a defendant may not be convicted on the uncorroborated story of one witness, even a child, in such case as this; but it is the law that you ought to consider such evidence with great caution. I need not call your attention to the reasons why the testimony of a child ought to be weighed more cautiously than the testimony of an older person, admitting the other circumstances to be the same. You will have those in mind.”
The sixth, seventh, and eighth assignments are founded on exceptions taken to certain remarks of the prosecuting attorney in the opening statement, and in the argument before the jury. Having considered these as set out in the bill of exceptions, we find no error in the refusal of defendant’s motion to discharge the jury and continue the case for trial before another. It is unnecessary to consume time with a recital of the remarks excepted to, and the rulings of the court. The exceptions are without merit. The case was fairly submitted to the jury; and the judgment is affirmed. , Affirmed.