majority">Navtou, J.,

delivered the opinion of the Court.

The plaintiff in error was indicted and convicted for an attempt to commit a rape upon a white woman./

To reverse'the judgment, three points are relied upon: first, that the indictment does not charge that the attempt was made feloniously; second, that the verdict is against the weight of testimony; and thirdly, that a portion of the jurors had prejudged the cause, and a new trial should therefore have been granted.

In relation to the last point, it is sufficient to observe, that the motion and affidavits upon which the action of the court was founded, though spread upon the record by the clerk, are not preserved by bill of exceptions.

It has been so often settled, that this Court will not disturb the verdict of a jury where no instructions have been asked or given, and where a state of facts is established by the evidence about which jurors or judges might differ, that it is deemed unnecessary to recite the testimony preserved in the bill of exceptions. The verdict is, in the opinion of the Court, satisfactory, and the judgment will not be reversed for the refusal of the Circuit Court to grant a new trial.

The first point in relation to the sufficiency of the indictment admits of doubt; yet the phraseology of our statute which defines the meaning of the term felony, would seem to forbid the adoption of any course other than the one pursued by the prosecution. The words of the act are singularly explicit; it declares, that the term felony shall be construed to mean, “ any offence for which the offender, on conviction, shall be liable, by law, to be punished with death, or by imprisonment in the penitentiary, and no other.” The 28th section of the second article of the act concerning crimes and punishments, declares the punishment for rape, or attempt to commit rape, by a negro or mulatto, to be castration. It is difficult to resist the conclusion, then, that the offence described in this indictment is not a felony within the meaning of our statute, and therefore the prosecutor prdperly omitted the word “ feloniously,” in describing the offence.

Judgment affirmed;

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