#### WILLIAMS *v.*THE STATE.

Assault, *8zc.*with Intent to commit a rape — -jurors—exceptions in describing offencequestioning a witness, and contradicting him — error—new trial.

Where the record shows a grand jury sworn, it will be presumed to have been composed of the requisite number of legal persons, unless the contrary be shown*

There is no exception in the statute of Ohio punishing an assault and battery, with intent to commit a rape, to be negatived by an averment in the indictment.

You need not, in any case, state more in setting out an offence, than will bring it within the statute; it would be absurd to suppose an offence could not be punished, because not described in some other way than in the law.

It is competent to contradict a fact, testified to by a witness, by the evidence of another; but, it is not competent to ask a witness an irrelevant or impertinent question, in order to open the way to call another to contradict such evidence.

Error, to the Common Pleas of Ross county, returnable to Scioto. The plaintiff in error was indicted for an assault and battery, with intent to ravish. On the trial, the counsel for the defendant,on cross examination, asked the prosecuting witness, if she had ever told any one, that she would do, or intended to do, all she could to send the defendant to the penitentiary? To which she answered, that she never had. The defendant afterwards called a witness, and asked, if he had ever heard the former witness say, she intended to do all she could to send the defendant to the penitentiary, or any thing to •that effect? To this the counsel for the state objected, and the court rejected the question, because the defendant had asked the question of the witness for the state. There was a verdict of guilty. A motion in arrest of judgment was then made, and overruled, and sentence pronounced.

*C. O.*Tracy, for plaintiff in error,

relied upon the following errors:

1. That the record does not show the grand jurors to have been men of Ross county, qualified according to law. 29 *O.L.*94; 1 *Ch. C. L.*333; *Hawk. B.*2, 6; 25 *Sec.*16, *p.*126; *Bac. Ab. Indictment J.*

2. That the indictment contains no averment, negativing the excepting words of the statute, creating the offence, other than daughter, &c. 1 *Ch. G. L.*282, 232,3,4; 1 *B. SfA.*99; 1 *T.R.*171; 3 *T.R.*253; *Archb. C. P.*24; *East. C. L.*448; *Foster C. L.*420.

*433. The question asked by the defendant of his witness, ought to have been admitted. 1 *Phil. Ev.*228, 9; 1 *Stark. Ev.*133, 4, 141, 2-7; 2 *Camp. R.*638, 9.

*Sill,*contra.

By the Court.

1. The record shows the indictment was found by the *grand jury,*duly empannelled, &c. in and for Ross county, &c. The law prescribes the number and qualifications of grand jurors, and the grand jury empannelled will be presumed composed of the requisite number, and of suitable persons, unless the contrary appears.

2. The 17th section of the criminal act, under which this party was indieted, provides punishment for every person who shall assault and beat another, with intent to commit a rape upon the person assaulted; 29 *O. L.*138. We see no excepting clause here to be negatived. Counsel suppose, that, because the legislature have provided a more severe punishment against one committing a rape upon his daughter or sister, than upon one committing a like offence upon another woman, therefore, there is an exception in the offence complained of here, which should be negatived in the indictment. The assault, with intent to commit a rape, is the same, whether the rape intended was of the higher or lesser species. The rule is correctly laid down in 1 *Archb. C. PI.*24, cited by plaintiff in error. ‘If there be any exception in the same clause of the act which created the offence, the indictment must show .negatively that the defendant does not come within the exception.’ You need not, in any case, state more than will bring the offence within the description of the statute; 1 *Ch. C. L.*182. These authorities support this indictment, which describes the offence as in the statute. Indeed, it would not be reconcilable with common sense, to hold, that where the statute provided a punishment for an offence specially described, the offender could not be punished, unless he were charged with something else. We see no error in the two first objections.

3. This Court has repeatedly decided, that you may not ask of a witness, on cross examination, any irrelevant question, with a view to contradict the answer, by other witnesses, or any question tending to disgrace or criminate the witness; but it has never been • supposed that facts testified to by a witness, in answer to questions asked, could not be falsified by other witnesses. The witness in this case was asked, on cross examination, if she had not made threats, &c. without objection. Had the question been asked before us, and objected to, we should not have suffered it to be put; *44but we do not see how that affects the real question. Did the Court legally reject the question propounded by the defendant? is the question before us; not whether, in the progress of the cause, the Court permitted the party to ask an improper question of another witness. The question asked and rejected, in our opinion, was competent, independent of the answer of the former witness, inasmuch as it went to impeach her credit. The question asked of her, and answered without objection, cannot change the legal right of the prisoner, to an answer to his own question.

In rejecting this evidence, we think the court below erred, and for that error reverse the judgment. A new trial is awarded, and the cause remanded for that purpose to the Ross Common Pleas.