Procedure." For though the former are a permissible substitute for the latter, it is not so plain that the latter are such for the former.3 § 481. "Daughter or sister," or "other woman," distinguished. An Ohio statute made it, in one section, rape, and punishable in a particular way, for a man to have "carnal knowledge of his daughter or sister, forcibly and against her will;" and, in the next section, rape, punishable less heavily, to have "carnal knowledge of any other woman, or female child, than his daughter or sister as aforesaid, forcibly and against her will." And the court observed that here "are distinct and separate crimes, and not merely different grades of the same crime;" adding, and apparently holding, that, "in charging the latter crime, it is essential for the indictment to state that the woman or female child upon whom the crime is charged to have been committed is not the daughter or sister of the accused." Whether this decision is sound or not, certainly not all tribunals will follow it. For it is a principle pervading the entire criminal law, that the prosecuting power can call an offender to account or not, or take notice of a particular element of his wrong or not, as it chooses. So that, where the injured female is the "daughter or sister," the grand jury is not compellable to take notice of the fact. They may frame the indictment as though she was not, and the conviction will be for the milder offense. For a defendant cannot escape by showing that he is more guilty than he is charged with being. Then, where the woman is not the "daughter or sister," this fact is simply matter of defense against the higher charge. And it is a rule of criminal pleading that matter of defense, though inserted in a statute, need not be negatived in the indictment thereon. Within this principle,§ 482. Age.- Where a statute makes punishable any person "who shall ravish and carnally know any female of the age Greer v. S., 50 Ind. 267, [19 Am. R. 709;] S. v. Erickson, 45 Wis. 86; [Langan v. S., 27 Tex. Ap. 498, 11 S. W. R. 521.] Crim. Pro., II, §§ 949, 951. 2 Id., § 951. 3 Crim. Law, II, § 1114 and note. 4 Swan, Stats. 269; Warren, Crim. Law (3d ed.), 246. 5 Howard v. S., 11 Ohio St. 328. [Contra, Jones v. S., 54 Ohio St. 1, 42 N. E. R. 699.] 6 Crim. Law, I, SS 784, 786, 791 et seq. 7 Crim. Pro., I, §§ 614–618, 638. of ten years or more by force and against her will, or shall unlawfully and carnally know and abuse any woman child under the age of ten years," an indictment which is silent as to the age is good under the former clause. And, as general doctrine, the female's age in rape, not speaking of the carnal abuse of a woman child, need not be averred.2 Nor, indeed, though she is below the statutory age, is the forcible ravishment of her the less rape. Nor need the age of the defendant be set out, though the statutory words are "any person of the age of fourteen years and upward, who shall have carnal knowledge." If he is below fourteen, it is simply matter for defense.* II. THE STATUTORY CARNAL ABUSE OF CHILDREN. $483. Elsewhere.- In "Criminal Law "we saw what is the common law on this subject." § 484. Incapacity for consent in rape. Some of our American courts, deriving from nature and from our common law (which, we saw elsewhere, rests on early English statutes) the doctrine that a girl under ten (or possibly under twelve 7) is incapable of consenting to the carnal act, have held it to be rape, in the ordinary sense, for a man to have carnal intercourse with such a girl, though outwardly, and in the common meaning of the expression, she consents. And they have even permitted the jury to infer, from an exceptional want of physical development at a somewhat greater age, the like incapacity, with the like consequence. On this question, we have the analogies 1 Com. v. Sugland, 4 Gray, 7; [S. v. Gaul, 50 Conn. 578; Nicholas v. S., 23 Tex. App. 317, 5 S. W. R. 239.] 2 Crim. Pro., II, § 954; [S. v. Haddon (S. C.), 27 S. E. R. 194; McLaughlin v. Com. (Ky.), 35 S. W. R. 1030; Cornelius v. S., 13 Tex. Ap. 349; P. v. Draper, 28 Hun, 1.] 3 Crim. Law, II, § 1118; Reg. v. Dicken, 14 Cox, C. C. 8; S. v. Worden, 46 Conn. 349; S. v. Storkey, 63 N. C. 7; O'Meara v. S., 17 Ohio St. 515; Charles v. S.,6 Eng. 389; Reg. v. Neale, 1 Car. & K. 591; Vasser v. S., 55 Ala. 264. 29 Cal. 575, 576; Com. v. Scannel, 11 5 Crim. Law, II, § 1133. 7 [S. v. Miller, 42 La. An. 1186, 8 S. R. 309, 21 Am. St. R. 418.] 8 Stephen v. S., 11 Ga. 225, 238; Gosha v. S., 56 Ga. 36; Joiner v. S., 62 Ga. 560, 562; McMath v. S., 55 Ga. 303; S. v. Tilman, 30 La. An. 1240, [31 Am. R. 236;] Dawson v. S., 29 Ark. 116, 120; Williams v. S., 47 Miss. 609, 612; 4 Crim. Pro., II, § 954; P. v. Ah Yek, Anschicks v. S., 6 Tex. Ap. 524. See of the law which makes it rape to penetrate a woman too profoundly asleep or insane to give consent.' But the indictment on those English statutes, parts of our common law, which punished the carnal knowledge of consenting girls, was distinct from that for ordinary rape, and it charged that the girl was below the age, for example, of ten years. One cannot well see how, from such a source, can be drawn the doctrine that, in point of law, the child is incapable of consenting in ordinary rape, under another statute. All will recognize the fact that, as an intellectual and moral process of the mind and will, she may consent, though the prompting may be something else than lust. Therefore the better doctrine in principle is believed to extend no further than as stated in another place,' that, in rape proper, less positive opposition will be required from an immature girl than from an adult." Most of our § 485. Our statutes (Name of offense). statutes either include the carnal abuse of female children under the name of "rape," or so connect it in a single sentence with rape proper that the courts call it by this name. Specimen enactments are: "If any person carnally know a female of the age of twelve years or more, against her will, by force, or carnally know a female child under that age, he shall be, at the discretion of the jury, punished by death, or confined in the penitentiary not less than ten nor more than twenty years." "Every person who is convicted, in due course of Reed's Ga. Crim. Law,332-334; [Jones v. S. (Ga.), 34 S. E. R. 174; Davis v. S., 31 Neb. 247, 47 N. W. R. 854; S. v. Houx, 109 Mo. 654, 19 S. W. R. 35, 32 Am. St. R. 654.] 1 Crim. Law, II, §§ 1121-1123. 23 Chit. Crim. Law, 814, 815. Still, the statute which made punishable the carnal act with a woman-child was simply silent as to the consent. It is 18 Eliz., ch. 7, § 4,-" carnally know and abuse any woman-child under the age of ten years." Crim. Law, II, § 1112. [For the Criminal Law Amendment Act, 1885 (48 and 49 Vict., ch. 69, § 5), in relation to carnal knowledge, see Reg. v. Williams, 1 Q. B. 320; Reg. v. Waite, 17 Cox. C. C. 554; Reg. v. Wealand, 16 Cox, C. C. 402; Reg. v. West, 1 Q. B. 174; Reg. v. Paul, 17 Cox, C. C. 111; Reg. v. Bostock, 17 Cox, C. C. 700; Reg. v. Tyrrell, 17 Cox, C. C. 716.] 3 Crim. Law, II, § 1124. 4 P. v. Special Sessions, 18 Hun, 330, 332; Reg. v. Woodhurst, 12 Cox, C. C. 443. 5 S. v. Johnston, 76 N. C. 209; Mayo v. S., 7 Tex. Ap. 342; Mosely v. S., 9 Tex. Ap. 137; Givens v. Com., 29 Grat. 830; Greer v. S., 50 Ind. 267, [19 Am. R. 709;] Lawrence v. Com., 30 Grat. 845. 6 Givens v. Com., supra. law, of ravishing and carnally knowing any female of the age of ten years or more, by force and against her will, or who is convicted in like manner of unlawfully and carnally knowing and abusing any female child under the age of ten years, shall suffer death." The statutes differ, as do these two, in some making the age ten and others twelve. And there are some other differences. The punishments are not generally so heavy as the above. § 486. Indictment.- One cannot be convicted of this offense on an indictment in the ordinary form as for a rape on an adult. There must be an allegation of the age, which means the age at the time of the commission of the offense, not at the time of the finding of the indictment.* Such averments as "with force," "against her will,” and “ravish” are unnecessary; though, if inserted, they may be treated as surplusage. In other respects the statutory words should be pur 6 5 1S. v. Dancy, 83 N. C. 608. [See Blanks v. Com. (Ky.), 48 S. W. R. 161.] 2 Greer v. S., 50 Ind. 267, [19 Am. R. 709;] Vasser v. S., 55 Ala. 264. And see Williams v. S., 1 Tex. Ap. 90, [28 Am. R. 399; Warner v. S., 54 Ark. 660, 17 S. W. R. 6; Bonner v. S., 65 Miss. 293, 3 S. R. 663. But there may be a joinder of two counts in the same indictment for the two of fenses, or the two offenses may even be joined in one count. Nicholas v. S., 23 Tex. Ap. 317, 5 S. W. R. 239; Sharp v. S., 15 Tex. Ap. 174; Taylor v. S., 24 Tex. Ap. 299, 6 S. W. R. 42; S. v. Houx, 109 Mo. 654, 19 S. W. R. 35, 32 Am. St. R. 686.] 3 Ante, § 484; Com. v. Sugland, 4 Gray, 7; Mosely v. S., 9 Tex. Ap. 137; Rex v. Wedge, 5 Car. & P. 298; Reg. v. Nicholls, 10 Cox, C. C. 476; S. v. Storkey, 63 N. C. 7; O'Meara v. S., 17 Ohio St. 515; Reg. v. Martin, 9 Car. & P. 215. See Reg. v. Shott, 3 Car. & K. 206; Bowles v. S., 7 Ohio (2d pt.), 243. 4 Monoughan v. P., 24 Ill. 340. 5 S. v. Black, 63 Me. 210; S. v. Smith, Phillips (N. C.), 302; S. v. Jarger, 66 Mo. 173. [Nor will evidence of con sent, unchastity, or defendant's intention not to use force, be received. P. v. Knight (Cal.), 43 Pac. R. 6; P. v. Rangold, 112 Cal. C69, 44 Pac. R. 107; P. v. Roach (Cal.), 61 Pac. R. 574; S. v. Ernest, 150 Mo. 347, 51 S. W. R. 688; S. v. Duffey, 128 Mo. 549, 31 S. W. R. 98; P. v. Goullette, 82 Mich. 36, 45 N. W. R. 1124; P. v. Schoonmaker, 117 Mich. 190, 75 N. W. R. 439; S. v. Bowser, 21 Mont. 133, 53 Pac. R. 439; Myers v. S., 54 Neb. 297, 74 N. W. R. 605; Proper v. S., 85 Wis. 615, 55 N. W. R. 1035; S. v. Frazier, 54 Kan. 719, 39 Pac. R. 819; Gonzales v. S. (Tex. Cr. R.), 31 S. W. R. 371; Rodger v. S., 30 Tex. Ap. 510, 17 S. W. R. 1077; Exon v. S. (Tex. Cr. R.), 33 S. W. R. 336; Buchanan v. S. (Tex. Cr. R.), 52 S. W. R. 769; Coates v. S., 50 Ark. 330, 7 S. W. R. 304; S. v. McCaffrey, 63 Iowa, 479, 19 N. W. R. 331; Com. v. Murphy, 165 Mass. 66, 42 N. E. R. 504, 52 Am. St. R. 496, 30 L. R. A. 734; Porter v. P., 158 Ill. 370, 41 N. E. R. 886; S. v. Smith, 9 Houst. 588, 33 Atl. Ꭱ. 441.] 6 McComas v. S., 11 Mo. 116. And see S. v. Erickson, 45 Wis. 86; [S. v. Horne, 20 Oreg. 485, 26 Pac. R. 665; * sued according to the rules governing other indictments on statutes,1 and no more will be required.? 66 § 487. Carnally know"-"Abuse."- Plainly, if the stat ute has the words, in the alternative, "carnally know or abuse, either of them in the indictment, or both connected by and, will suffice. "Abuse," in this connection, means an injury to the genital organs and no other. The expression "carnally know," therefore, referring to a girl of this tender age, includes all that is meant by "abuse," and more. So that, under the English statute of 24 and 25 Vict., ch. 100, § 50, the words of which are “carnally know and abuse,” it is adjudged sufficient for the indictment to say simply "carnally know."5 § 488. What the carnal knowledge. The carnal knowledge required in this offense is the same as in rape proper, explained in another connection. There must be res in re, but to no particular depth, and the hymen need not be broken." "I shall leave it," said Parke, B., "to the jury to say whether, at any S. v. Mahoney (Mont.), 61 Pac. R. 647; 1 Crim. Pro., I, §§ 611, 612. [Where the statute is against carnal knowledge of a female under the age of fifteen years, "other than the wife" of the perpetrator, the indictment must negative the fact that the female was the wife of defendant. Rice v. S., 37 Tex. Cr. R. 36, 38 S. W. R. 801; Dudley v. S., 37 Tex. Cr. R. 543, 40 S. W. R. 269. See also Parker v. Terr. (Okl.), 59 Pac. R. 9. But if the girl was over the age of fifteen years, the indictment need not contain the negative. Cardenas v. S. (Tex. Cr. R.), 40 S. W. R. 980.] 2S. v. Black, supra. And see O'Rourke v. S., 8 Tex. Ap. 70. Where the words of the statute were "shall have carnal knowledge of any female child under the age of ten years, either with or without her consent," it was adjudged sufficient to allege that the defendant, on, etc., at, etc., "did unlawfully and feloniously have carnal knowledge of a female child, named A., she, the said A., then being under ten years of age, to wit, of the age," etc. P. v. Mills, 17 Cal. 276. And see P. v. Ah Yek, 29 Cal. 575; [King v. S., 120 Ala. 329, 25 S. R. 178; McGuff v. S., 88 Ala, 147, 7 S. R. 35, 16 Am. St. R. 25; Inman v. S. (Ark.), 47 S. W. R. 558; Asher v. Terr., 7 Okl. 188, 54 Pac. R. 445; Young v. Terr. (Okl.), 58 Pac. R. 724; Holton v. S., 28 Fla. 303, 9 S. R. 716; S. v. Hairston, 121 N. C. 579, 28 S. E. R. 492; P. v. Maxon, 10 N. Y. S. 593; Bissette v. S., 101 Ind. 85.] Ante, § 244. And see Dawkins v. S., 58 Ala. 376, [29 Am. R. 754.] 4 Dawkins v. S., 58 Ala. 376, [29 Am. R. 754. See Fields v. S., 39 Tex. Cr. R. 488, 46 S. W. R. 814.] 5 Reg. v. Holland, 16 Law T. (N. S.) 536, 15 W. R. 879, 10 Cox, C. C. 478. [See Buchanan v. S. (Tex. Cr. R.), 52 S. W. R. 769.] 6 Crim. Law, II, §§ 1127-1132. 7 Brauer v. S., 25 Wis. 413; [P. v. Courier, 79 Mich. 366, 44 N. W. R. 571.] |