¶1The contention of the defendant in support of the motion to quash is based upon the argument that, since the St. of 1893, c. 466, the offence of unlawfully and carnally knowing a female child under the age of consent is no longer rape ; that an assault should not be charged for an offence under § 2; and that the effect of charging an assault and also the specific offence described in § 2 is to render the first five counts bad for duplicity, they being repugnant to the sense, and vague, uncertain, and indefinite.
¶2The St. of 1893, c. 466, § 1, provides: “ Whoever ravishes and carnally knows a female by force and against her will shall be punished by imprisonment in the state prison for life, or for any term of years.” Section 2 provides: “ Whoever unlawfully and carnally knows and abuses a female child under the age of sixteen years shall be punished by imprisonment in the state prison for life, or for any term of years, or for any term in any other penal institution in the Commonwealth.” Section 3 repeals the St. of 1888, c. 391.
¶3Section 27 of the Pub. Sts. c. 202, which follows earlier statutes, provides : “ Whoever ravishes and carnally knows a female of the age of ten years or more by force and against her will, *196or unlawfully and carnally knows and abuses a female child under the age of ten years, shall be punished by imprisonment in the state prison for life, or for any term of years.” This section was repealed by the St. of 1886, c. 305, § 2, but § 1 is the same as § 27 of the Public Statutes, except that the word “ thirteen ” is substituted for the word “ ten ” in the earlier statute. The word “ fourteen ” was substituted for the word “ thirteen ” by the St. of 1888, c. 391; and now by the St. of 1893, c. 466, § 2, the age of consent is raised to sixteen years.
¶4There can be no doubt that prior to the St. of 1893 an indictment in the present form was good. The offence was rape, and it was proper to allege an assault, though it was not necessary to aver or prove that the act alleged was done against the will of the child assaulted or without her consent. On account of her tender years she was incapable of giving a valid consent; and the law conclusively presumed that she did not consent. Commonwealth v. Roosnell, 143 Mass. 32, and cases cited.
¶5We do not consider the fact that the St. of 1893 has used two sections instead of one, or the fact that it has given more discretion to the court as to the punishment in § 2 than in § 1, in any way changes the law, which from early times has existed here, that carnal knowledge and abuse of a female child under a certain age is rape. In Commonwealth v. Murphy and Commonwealth v. Enos, 165 Mass. 66, it was said by Mr. Justice Knowlton, in delivering the opinion of the court, that the acts in amendment of § 27 of the Pub. Sts. c. 202, including the St. of 1893, c. 466, which raise the age of consent, “ do not assume to change the nature of the offence to which they relate. One who unlawfully carnally knows and abuses a female child under the age of sixteen years is guilty of the same crime under St. 1893, c. 466, as one who committed the offence upon a child under the age of ten years, when Pub. Sts. c. 202, § 27, were in force. . . . There is no doubt of the intention of the Legislature to treat the crime of having carnal connection with a girl under the age of sixteen years as rape, even if she gives her full consent so far as she is capable of consenting.” It may be remarked that the indictment in Commonwealth v. Enos was not for an assault and an attempt to carnally know and abuse, as stated in the report, 165 Mass. 68, but was similar to the first *197five counts in the indictment in the case at bar. The motion to quash was rightly overruled.
¶6The fact that the jury failed to return a verdict upon the ninth and tenth counts of the indictment did not prevent a judgment being entered against the defendant upon the counts upon which he was found guilty. The effect of the acceptance of the verdict and the judgment consequent thereon operated either as an acquittal of the defendant on the ninth and tenth counts, or as a discontinuance of them. Edgerton v. Commonwealth, 5 Allen, 514. Commonwealth v. Foster, 122 Mass. 317, 322. The motion in arrest of judgment was, therefore, properly denied.
¶7The exceptions must therefore be overruled; and judgment entered for the Commonwealth upon the appeal.
¶8 So ordered.