¶1The defendant was indicted in Jan-nary, 1891, >in the circuit court of Cape Girardeau county, for an assault with intent to ravish a female under the age of fourteen years, was found guilty thereof upon trial had, and sentenced to imprisonment in the penitentiary for a term of three years, and the case is before us on appeal.
¶2The evidence on the part of the state shows that if any crime was committed it was rape, and not an assault with intent to commit rape. Ada Bush, the. prosecutrix, testified that she was thirteen years old at the time of the alleged commission of the offense, and that defendant had sexual intercourse with her. She being under fourteen years of age, this constituted rape, whether she consented or not. Revised Statutes, 1889, sec. 3480; State v. Houx, 109 Mo. 654; State v. Baskett, ante, p. 271.
¶3This being the case, the conviction and sentence for an assault .to. commit rape must be set aside under section 3941, Bevised Statutes, 1889, which provides that “no person shall be convicted of an assault with intent to commit a crime, or of any other attempt to commit any other offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person at the time of such assault or in pursuance of such attempt.” This court in State v. White, 35 Mo. 500, which in all essential particulars is similar to the case in hand, in construing this section, held that a conviction for an assault with intent to ravish could not be sustained where the evidence shows the perpetration of the crime intended or attempted. This section is not in conflict with section 3949 of our criminal code authorizing a conviction for any degree of the offense inferior to that charged in the indictment; nor with section 3950 authorizing a conviction for a less offense where the
¶4*517charge is for an assault with intent to commit a felony, and authorizing the jury in all cases to find the accused guilty “of any offense, the commission of which is necessarily included in that charged against him.” In view of the two sections last cited, we see no reason for the existence of section 3941, supra, hut that is no reason why this court should nullify or ignore it. Ita lex scripta est.
¶5The judgment will be reversed, and there being reasonable ground to believe that defendant can be convicted of rape if properly charged, the case is remanded in order to enable the prosecuting attorney to take the matter before the grand jury again, if he so desires. Secs. 4274, 4275; State v. Wacker, 16 Mo. App. 417.