OPINION OP THE COURT BY
ROBERTSON, C. J.
(Quarles, J., dissenting)
The plaintiff in error' was convicted by a jury under an indictment which charged that he," on the 31st day of December, 1914, “unlawfully, feloniously and without authority or justification by law, did take indecent and improper liberties with the person of one Maria Lau Chong, an unmarried female child under the age of twelve years; and he, the said Tan Tick, also sometimes known as and called Ah Chick, did then and there and thereby commit the crime of indecent assault.”
The assignments of error go to the denial by the trial court of defendant’s motion, made at the conclusion of the evidence, to direct the acquittal of the defendant on the ground that the indictment charged no offense under the laws of this Territory; and to the refusal of the court to give certain instructions requested by the defendant, and the giving of an instruction as requested by the prosecution.
Section 3897 of the Revised Laws, 1915, provides as follows: “Whoever takes indecent and improper liberties with the per[775]*775son of a female child under the age of twelve years without- committing or intending to commit the crime of rape shall be deemed guilty of indecent assault and on conviction thereof shall be punished by a fine not exceeding one thousand dollars or imprisonment at hard labor for not more than five years or both.” It will be noticed that the charge stated in the indictment did not include the words “without committing or intending to commit the crime of rape” used in the statute. The absence of those words from the indictment furnished the ground for the defendant’s motion for a direction of acquittal. The instructions requested by the defendant, and which the court refused to give, were to the effect that it was incumbent upon the prosecution to prove that the defendant did not rape or intend to rape the prosecuting witness, and that if the jury should find from the evidence that at the time of talcing indecent and improper liberties with the girl the defendant did intend to commit the crime of rape the verdict should be “not guilty.” The court instructed the jury that it was necessary for the prosecution to prove only that the defendant did take indecent and improper liberties with the person of the girl at the time and place charged, and that she was an unmarried female child under the age of twelve years. No evidence was offered on the part of the defense but there was evidence on the part of the prosecution from which the jury could have found that at the time of the committing of the assault the accused did intend to have sexual intercourse with the prosecutrix, though the intention appears not to have been carried out. The claim that errors were committed as assigned rests upon the one contention that the phrase contained in the statute “without committing or intending to commit the crime of rape” is an essential ingredient of the offense created by the statute which it was necessary to allege in the indictment, and was required to be proved at the trial. Counsel argues that the words just quoted constitute an exception, and he relies upon the familiar rule that- where a statute contains an exception which is so incorporated in the [776]*776definition or description of the offense defined as to be a material part of it, the indictment must negative the exception. We are of the opinion, however, that the words in question do not constitute an exception, and, therefore, that the rule invoked does not apply. Anderson, in his law dictionary, says that an exception “in a statute, excludes from the purview a person or thing included in the words.” The office of an exception is to draw away from the operation of the statute matters which would otherwise be included. United States v. Cook, 17 Wall. 168, 177; Campbell v. Jackman, 140 Ia. 475, 480; Pabst Brewing Co. v. Milwaukee, 148 Wis. 582, 587; Powell v. Janvrin, 151 N. Y. 60, 67. We think such is not the effect of the words used in the statute above .quoted. The statute, which was originally enacted as Act 128, S. L. 1911, was intended, as we believe, to meet a class of cases involving young girls in which the charge usually made was of assault with intent to commit rape, and where, owing to the difficulty of proving the specific intent, and the absence of statutory authority for a conviction of assault without such intent, under such an indictment, acquittals were often the result. Another section of the same act (now R. L. 1915, Sec. 3898) provided that under an indictment charging rape, or the carnal abuse of a female child under the age of twelve years, or assault with intent to commit either of those offenses, the jury may find the defendant guilty of an indecent assault as defined in the section above quoted. The statute of 1911 was reenacted as part of chapter 224 of the Revised .Laws, 1915, wherein are also included the sections relating to rape, the carnal abuse of a female child under the age of twelve years, and assault with intent to commit rape or to carnally abuse such child. The punishment prescribed under section 3896, for an assault with, intent to rape or to carnally abuse is the same as that under section 3897, for indecent assault, i. e., a fine not exceeding one thousand dollars or imprisonment not more than five years, or both. The object of the legislature seems to have been then, not only to authorize a con[777]*777viction of the newly defined offense of “indecent assaidt” where, under an indictment charging rape or an assault- with the specified intent, the evidence may fall short of establishing the entire charge, but of providing for the indictment, in the first place, of persons for taking “indecent and improper liberties with the person of a female child under the age of twelve years” irrespective of the intent with which it was done. The phrase contained in the statute which is claimed to constitute an exception begins with the word “without.” In the ease of Evans v. McFarland, 186 Mo. 703, 725, it was said, “A proper gloss of the word ‘without’ does not require it to be read as meaning ‘unless’ or ‘except.’ Good usage permits its meaning to be, when employed in a correct propositional sense, ‘independently of’ ‘otherwise than with.’ ” The phrase in question was not intended to take out of the operation of the statute anything which would otherwise be included in it, but as part of the description of a hitherto undefined offense which was added to the category of sexual crimes. It is a part of the description of the newly created offense, but whether it is a part that must be proved we will consider later. Section 3791 of the Revised Laws, 1915, provides that “No indictment for any offense shall be held insufficient for want of the averment of any matter unnecessary to be proved.” So far as the pleading is concerned the case would seem to fall within the general rule that “where there are several species of the same general crime with varying circumstances of aggravation and subject to a gradation of punishments, it is not necessary to negative such circumstances.” 22 Cyc. 346. In Com. v. Squire, 1 Met. 258, there was an indictment for malicious burning. The statute provided that “Every person who shall wilfully and maliciously burn * * * any banking house, store * * * or other building whatsoever, of' another, other than is mentioned in the third section, shall be punished,” etc. It was held that the indictment was not defective because it did not contain the words “other than is mentioned in the third section.” See, to the same effect, State v.
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OPINION OP THE COURT BY
ROBERTSON, C. J.
(Quarles, J., dissenting)
The plaintiff in error' was convicted by a jury under an indictment which charged that he," on the 31st day of December, 1914, “unlawfully, feloniously and without authority or justification by law, did take indecent and improper liberties with the person of one Maria Lau Chong, an unmarried female child under the age of twelve years; and he, the said Tan Tick, also sometimes known as and called Ah Chick, did then and there and thereby commit the crime of indecent assault.”
The assignments of error go to the denial by the trial court of defendant’s motion, made at the conclusion of the evidence, to direct the acquittal of the defendant on the ground that the indictment charged no offense under the laws of this Territory; and to the refusal of the court to give certain instructions requested by the defendant, and the giving of an instruction as requested by the prosecution.
Section 3897 of the Revised Laws, 1915, provides as follows: “Whoever takes indecent and improper liberties with the per[775]*775son of a female child under the age of twelve years without- committing or intending to commit the crime of rape shall be deemed guilty of indecent assault and on conviction thereof shall be punished by a fine not exceeding one thousand dollars or imprisonment at hard labor for not more than five years or both.” It will be noticed that the charge stated in the indictment did not include the words “without committing or intending to commit the crime of rape” used in the statute. The absence of those words from the indictment furnished the ground for the defendant’s motion for a direction of acquittal. The instructions requested by the defendant, and which the court refused to give, were to the effect that it was incumbent upon the prosecution to prove that the defendant did not rape or intend to rape the prosecuting witness, and that if the jury should find from the evidence that at the time of talcing indecent and improper liberties with the girl the defendant did intend to commit the crime of rape the verdict should be “not guilty.” The court instructed the jury that it was necessary for the prosecution to prove only that the defendant did take indecent and improper liberties with the person of the girl at the time and place charged, and that she was an unmarried female child under the age of twelve years. No evidence was offered on the part of the defense but there was evidence on the part of the prosecution from which the jury could have found that at the time of the committing of the assault the accused did intend to have sexual intercourse with the prosecutrix, though the intention appears not to have been carried out. The claim that errors were committed as assigned rests upon the one contention that the phrase contained in the statute “without committing or intending to commit the crime of rape” is an essential ingredient of the offense created by the statute which it was necessary to allege in the indictment, and was required to be proved at the trial. Counsel argues that the words just quoted constitute an exception, and he relies upon the familiar rule that- where a statute contains an exception which is so incorporated in the [776]*776definition or description of the offense defined as to be a material part of it, the indictment must negative the exception. We are of the opinion, however, that the words in question do not constitute an exception, and, therefore, that the rule invoked does not apply. Anderson, in his law dictionary, says that an exception “in a statute, excludes from the purview a person or thing included in the words.” The office of an exception is to draw away from the operation of the statute matters which would otherwise be included. United States v. Cook, 17 Wall. 168, 177; Campbell v. Jackman, 140 Ia. 475, 480; Pabst Brewing Co. v. Milwaukee, 148 Wis. 582, 587; Powell v. Janvrin, 151 N. Y. 60, 67. We think such is not the effect of the words used in the statute above .quoted. The statute, which was originally enacted as Act 128, S. L. 1911, was intended, as we believe, to meet a class of cases involving young girls in which the charge usually made was of assault with intent to commit rape, and where, owing to the difficulty of proving the specific intent, and the absence of statutory authority for a conviction of assault without such intent, under such an indictment, acquittals were often the result. Another section of the same act (now R. L. 1915, Sec. 3898) provided that under an indictment charging rape, or the carnal abuse of a female child under the age of twelve years, or assault with intent to commit either of those offenses, the jury may find the defendant guilty of an indecent assault as defined in the section above quoted. The statute of 1911 was reenacted as part of chapter 224 of the Revised .Laws, 1915, wherein are also included the sections relating to rape, the carnal abuse of a female child under the age of twelve years, and assault with intent to commit rape or to carnally abuse such child. The punishment prescribed under section 3896, for an assault with, intent to rape or to carnally abuse is the same as that under section 3897, for indecent assault, i. e., a fine not exceeding one thousand dollars or imprisonment not more than five years, or both. The object of the legislature seems to have been then, not only to authorize a con[777]*777viction of the newly defined offense of “indecent assaidt” where, under an indictment charging rape or an assault- with the specified intent, the evidence may fall short of establishing the entire charge, but of providing for the indictment, in the first place, of persons for taking “indecent and improper liberties with the person of a female child under the age of twelve years” irrespective of the intent with which it was done. The phrase contained in the statute which is claimed to constitute an exception begins with the word “without.” In the ease of Evans v. McFarland, 186 Mo. 703, 725, it was said, “A proper gloss of the word ‘without’ does not require it to be read as meaning ‘unless’ or ‘except.’ Good usage permits its meaning to be, when employed in a correct propositional sense, ‘independently of’ ‘otherwise than with.’ ” The phrase in question was not intended to take out of the operation of the statute anything which would otherwise be included in it, but as part of the description of a hitherto undefined offense which was added to the category of sexual crimes. It is a part of the description of the newly created offense, but whether it is a part that must be proved we will consider later. Section 3791 of the Revised Laws, 1915, provides that “No indictment for any offense shall be held insufficient for want of the averment of any matter unnecessary to be proved.” So far as the pleading is concerned the case would seem to fall within the general rule that “where there are several species of the same general crime with varying circumstances of aggravation and subject to a gradation of punishments, it is not necessary to negative such circumstances.” 22 Cyc. 346. In Com. v. Squire, 1 Met. 258, there was an indictment for malicious burning. The statute provided that “Every person who shall wilfully and maliciously burn * * * any banking house, store * * * or other building whatsoever, of' another, other than is mentioned in the third section, shall be punished,” etc. It was held that the indictment was not defective because it did not contain the words “other than is mentioned in the third section.” See, to the same effect, State v. [778]*778Ambler, 56 Vt. 672. In Devoe v. Com., 3 Met. 316, the charge was of house breaking. The statute provided that “If any person, in the night time, shall break and enter any shop, warehouse, or office, not adjoining to or occupied with a dwelling house,” etc. The contention that the indictment was defective because it did not aver that the office alleged to have been entered was “not adjoining to or occupied with a dwelling house,” was not sustained. In People v. Durkin, 5 Park. Cr. Rep. 243, the statute relating to arson in the second degree provided that “Every person who shall wilfully set fire to or burn in the night time any shop, warehouse or other building, not being the subject of arson in the first degree,” etc. The count in the indictment upon which the defendant was convicted did not state that the building set fire to was not the subject of arson in the first degree. But the court held (p. 250) that the words “not being the subject of arson in the first degree” did not create an exception, but “were only intended to distinguish between the different degrees of the same general offense.” Though the rule just adverted to mentions the “gradation of punishments,” the real test is the intention of the legislature to distinguish between different phases of the same kind of crime, and the rule applies though, as here, the punishment prescribed for the aggravated. degree is the same as that for the particular offense charged. See Larned v. Com. 12 Met. 240. This is not a case where a statute has condemned an act when done with a specific intent. In such a case, under the rule that every material fact or circumstance embraced in the definition of the offense in question must be stated in the indictment, the presence of the specific intent must be alleged. Under our statute the intent with which an indecent assault is committed is immaterial.
Counsel for the plaintiff in error, in connection with his contention that the jury was misdirected, argues that in a charge under section 3897 it is necessary for the prosecution to prove, as well as to allege, a lack of intent on the part of the accused to commit rape, and, hence, that if in any case the evidence [779]*779shows that rape was committed, or that the intent to commit it was present, it would be a complete defense to the charge and the accused would be entitled to an acquittal. Clear and unmistakable language would have to be used by the legislature before the court would be warranted in attributing to it the intention that evidence of the commission, or the intent to commit, the crime of rape would constitute a defense to a charge of indecent assault. The rule of law, in the absence of statute, is that it is no defense to an indictment that the facts in proof show that the defendant committed an offense of a higher degree than that charged. Com. v. Smith, 151 Mass. 491, 495; Com. v. Hogarty, 141 Mass. 106, 110; People v. Durkin, supra. An analogy is found in the law of homicide. Manslaughter is the unlawful killing of a human being without malice, but under an indictment for manslaughter it is not necessary for the prosecution to prove that malice did not exist. And so it was held in the case of Com. v. McPike, 3 Cush. 181, that it is no defense to an indictment for manslaughter that the evidence shows that the defendant committed murder. Upon the same principle it was held in Com. v. Creadon, 162 Mass. 466, that a defendant may be convicted on an indictment charging an assault with intent to commit rape even though the evidence showed his crime was rape. And in the case of State v. Hamey, 168 Mo. 167, 203, it was decided that under an indictment charging carnal knowledge of an unmarried female between the ages of fourteen and eighteen years, it is no defense that the evidence showed that rape was committed.
The intention of the legislature was to condemn the act of taking improper and indecent liberties with the persons of female children under the age of twelve years. Whether or not the person indicted, at the time he committed the assault, entertained an intent to go farther is immaterial. Proof of the commission of rape, or of an assault with intent to commit rape, would,' as it did in the case at bar, prove the taking of indecent [780]*780and improper liberties with tbe person of the prosecutrix. The defendant was not surprised or otherwise prejudiced in his defense, and he cannot very well complain because he was not accused of having intended to commit rape. We hold that it was not necessary to either allege or prove that the assault was committed without committing or intending to commit rape.
Eugene Murphy for plaintiff in error.
E. B. Bevins, County Attorney of Maui, for defendant in error.
The judgment of the circuit court is affirmed.