#### STATE *vs.*JESSE FARMER.

Where an indictment for a rape charged, that the defendant “ with force and arms, &c. in and upon one Mary Ann Taylor in the peace of the State, &c. . violently and feloniously did make an assault, and her the said Mary Ann Taylor then and there violently and against her will feloniously did ravish and carnally know ”, the Court can and must see with certainty that Mary Ann Taylor was a female.

It is not necessary in an indictment for a rape to state the female ravished was . of the age of ten years. /

If she be under the age of ten, then that fact should be averred, because abusing such a female is made felony by .the statute, whether she assented to the act or not.

The case of *State*v *Terry,*4 Dev. *&*Bat. Rep. 152, cited and approved.

Appeal from tbe Superior Court of Law of Bertie County, at Spring Term, 1844, his Honor Judge Bailey presiding.

The defendant was tried and convicted upon the following indictment, viz:

"State of North Carolina, Bertie County,

Superior Court of Law, Spring Term, 1844.

The Jurors for the State, upon their oaths, present, that Jesse Parmer, late of Bertie County, laborer, on the fourth *225day of March, in the year one thousand eight hundred and forty four, with force and arms, in said County, in and upon one Mary Ann Taylor, in the peace of the State, then and there being, violently and feloniously did make an assault, and her the said Mary Ann Taylor then and there, violently and against her will, feloniously did ravish and carnally know, against the form of the Statute in such cases made and provided, and against the peace and dignity of the State.”

The jury having found the defendant guilty, he moved in arrest of judgment; *first',*because the bill of indictment did not charge that Mary Ann Taylor was a female, and therefore it was defective; *secondly,*it was defective, because it did not charge that Mary Ami Taylor was a female of the age of ten years.

The motion was over-ruled and sentence of death passed upon the defendant. From this judgment he prayed an appeal to the Supreme Court, which was granted without security, it appearing to the satisfaction of the Court, by affidavit made by the said defendant, that he was unable to give security.

*Attorney General*for the State.

No counsel in this Court for the defendant.

Daniel, J.

This was an indictment for a rape. Thé first ground, taken by the prisoner in arrest of judgment, to wit, “ that the bill of indictment does not charge that Mary Ann Taylor is a female ”, was, we think, properly over-ruled by the Court. This question came up before us in the *State*v *Terry,*4 Dev. & Bat. 152, where we decided, that the word “ *her,”*used in the indictment, disclosed with sufficient certainty, that the person, stated therein to have been ravished, was a female. This indictment charges that the prisoner “ did make an assault, and he)1 the said Mary Ann Taylor, then and there, violently and against *her*will, felo-liously did ravish and carnally know.” From the language used, the court can and must see with certainty, that Mary *226Ann Taylor is a female. The form of this indictment, is agreeable to the one set forth *if*Archbold. C. L. 372. The second ground taken by the prisoner in arrest of judgment, tjaat tjie jn(jictment does not charge that Mary Ann Taylor was a female of the age of ten jrears or more. This objection, we think, was projierly over-ruled by the Court. An indictment for rape never states the age of the female that has been ravished. If indeed she be under the age of ten years, then it is averred in the indictment, because (by force of the Statute) abusing such a female is made felony, whether she assented to the act or not.

We have attentively examined the whole of the record in this case, and we are unable to discover any defect in it. This opinion will be certified, in order that the Superior Court of Bertie County may proceed to pronounce judgment and award execution.

Per Curiam, Ordered accordingly.