I concur in the order of affirmance. The question for determination is whether, under appellant's pleas of *Page 473 former conviction and once in jeopardy to the information in the district court, he was entitled to prove that he had been adjudged guilty of assault and battery in the justice's court.
It is conceded that the facts of the case in the justice's court are the same facts on which he was convicted in the district court. In the oral argument before us and in their briefs, opposing counsel presented and discussed two classes of cases, one of which, People v. McDaniels, 137 Cal. 192,69 P. 1006, 59 L.R.A. 578, 92 Am. St. Rep. 81, is typical, holding that jeopardy attaches under similar circumstances; the other of which, Crowley v. State, 94 Ohio St. 88, 113 N.E. 658, L.R.A. 1917A, 661, is representative, holding that it does not.
I think, however, that the particular facts of this case take it out of the doctrine of either class of cases mentioned.
The appellant is charged in the information with the crime of attempted rape alleged to have been committed upon a female of the age of 15 years.
It is clear that the accused was never in jeopardy in the justice's court as to the crime of attempted rape. He was not charged with the felony in that court, and the court would have no jurisdiction if he had been charged with it. Consequently, on his trial on the information, he had not been once in jeopardy for the crime of attempted rape, nor was he then in jeopardy for the offense of assault and battery, unless it is necessarily included in the offense charged. If it is not so included, a verdict of guilty of assault and battery would not have been responsive to the issues raised by the information, and therefore void. Section 11017 N.C.L., reads: "In all cases the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged, or may be found guilty of an attempt to commit the offense charged."
The converse of this statutory rule is true.
As previously stated, the crime charged is attempted *Page 474 rape of a female of the age of 15 years. The jury found the accused guilty as charged. Upon their verdict, the trial court adjudged him guilty of the crime of attempted rape, and pronounced sentence accordingly.
"Any person of the age of sixteen years or upwards who shall have carnal knowledge of any female child under the age of eighteen years, either with or without her consent, shall be adjudged guilty of the crime of rape. * * *" Section 10124 N.C.L.
This being the law, the appellant could have been convicted of the offense charged, to wit, attempted rape, even though the female, who was under the age of 18 years, consented to everything that was done. In that event there would have been no assault, for, as held in State v. Pickett, 11 Nev. 255, 21 Am.Rep. 754, there can be no assault upon a consenting female.
It is obvious, therefore, that the appellant could not have been in jeopardy upon any state of facts the evidence might disclose, for, if the female did not consent, there is no charge of an assault. Jeopardy cannot attach, in the absence of a valid charge. Ex parte Maxwell, 11 Nev. 428. But it is contended that the charge of assault and battery is included because the information charges an assault with intent to commit rape. I do not so construe it. I concur with the trial court in its opinion that the allegations of fact in the information attending the attempt are simply alleged as overt acts. An overt act is an essential allegation in charging an attempt of this character. State v. Verganadis, 50 Nev. 1, 248 P. 900.
I have therefore joined in affirming the judgment.