I think that there are two substantial grounds for a reversal of the judgment in this case:
(1) In referring to the constitutional provision limiting the age of consent, contained in article 3, § 33, and impliedly declaring its application to the first count in the indictment, the presiding Judge permitted and justified the jury in convicting the defendant of assault with intent to ravish, upon proof that he had attempted intercourse with a maid under the age of 14 years.
(2) The indictment containing two counts, one for assault with intent to ravish, and the other for an assault and battery of a high and aggravated nature, and the verdict being, "We, the jury, find the defendant guilty with recommendation to mercy of the Court," it is impossible to say upon which count the jury intended to convict the defendant; and hence no valid judgment could have been pronounced thereon.
I. It is correctly held, I think, in the leading opinion of the Chief Justice, that the first count does not charge a statutory offense; that, while section 7 of the Criminal Code recognizes the offense of rape as a crime under the common law, and fixes the punishment therefor (limited by the provisions of section 8, in the event of the verdict carrying a recommendation to the mercy of the Court), it does not attempt to define the offense, and that the same may be said of section 8, in reference to the crime of assault with intent to commit the common-law crime of rape; that both are common-law offenses, the statute simply fixing the punishment therefor.
I think too that his analysis of section 9, which creates the offense of intercourse with a maid under 16 years of age, with or without her consent, is entirely correct; that the offense defined and declared punishable therein "is entirelya statutory offense and distinct from rape" — citing *Page 441 State v. Haddon, 49 S.C. 308, 27 S.E., 194, 197, where the Court said: "The two offenses, while having some points of resemblance, are distinct and separate." The offense of assault with intent to commit the act inhibited by section 9 is therefore a common-law offense, separate and distinct from that of assault with intent to commit a rape, as are the main offenses.
I agree also with the declaration that the first count of the indictment does not charge the offense defined in section 9, and that the presiding Judge made no reference to it in his charge to the jury. He did, however, charge fully as to the provisions of article 3, § 33, of the constitution, fixing the age of consent, which in my opinion was as objectionable and prejudicial to the defendant as if he had charged as to the provisions of section 9 of the Criminal Code. In fact I think that the Judge's charge inseparably connected the constitutional provision with the first count in the indictment. It is impossible to read the charge without coming to the conclusion that he intended to instruct the jury that, if the maid was under 14 years, she could not legally consent, and that the offense of assault with intent to rape would be made out. He was addressing himself to the immediate offense charged under the first count, assault with intent to rape, and said: "Now with reference to this matter of consenting. There can be no rape where the victim legally consented;there can be no conviction of an assault with intent to ravishwhere the alleged victim willingly consented, lawfully, capablyand competently assented."
He then stated the rule at common law as to the age of consent, and read to the jury article 3, § 33, as follows: "* * * No unmarried woman shall legally consent to sexual intercourse who shall not have attained the age of fourteen years."
He then proceeded: "So that, gentlemen, if you should find from the evidence in this case that the defendant W.K. Wilson, sought to and intended to have sexual intercourse *Page 442 with Helen Forrest, but fell short of the completed act, if you should find that he made an assault upon her for the purpose of having such intercourse, and if you should further find that the prosecuting witness, Helen Forrest, at the time of the alleged assault, was under the age of fourteen years, then I charge you, gentlemen of the jury, that the consent or willingness or indifference or ignorance on her part, if any, as to what was taking place does not excuse, cannot excuse since the constitution of our State directly states that a female under the age of 14 is legally incompetent, incapable of consenting to sexual intercourse. Now whether or not she consented goes out of the case if you find that she is under the age of 14 years."
The objection to the charge is that, upon an indictment for a common-law offense, the State cannot insist upon a verdict based upon evidence of a purely statutory offense. There could be no objection to the Court's calling the jury's attention to the constitutional provision relating to the age of consent, as bearing upon the essential element in the crime of rape, or assault with intent to commit that crime, at common law, that the act was done forcibly and against the willof the victim, or, as is sometimes expressed, without her consent; the two expressions in many being held synonymous. As is said in the Haddon case, supra: "The constitutional provision operated only on the question of consent to sexual intercourse, creating a new rule of evidence in the proof of consent, — declaring certain persons incapable of consenting. Therefore, under the common law, in an indictment for rape it was necessary to allege that the female was under 10 years old, but, notwithstanding that, proof was allowed, or competent to be made, as to the age of the child, because to prove one incapable of consenting either in law or by reason of physical condition, is tantamount to proving the absence of consent; as, in this State, there may be an indictment for rape without alleging that the female is unmarried and under 14 years old, and under such indictment *Page 443 it may be proven by the State, in its testimony in chief, that the female is unmarried and under 14 years old, in order thereby to establish that the sexual intercourse was without consent, or such proof may be offered by the State in reply to defendant's defense that the female actually consented."
If the presiding Judge had confined his statement to the element of want of consent, there could have been no objection to his referring to the constitutional provision. He should have charged that although that element was supplied by the provision, the main element of force had to be supplied by evidence. In other words, the effect of his charge was to construe the provision as supplying both elements of force and want of consent.
While it is true that the indictment was not framed under section 9, the Court must take notice of the fact that section 9 has been enacted, and it evidently was enacted to create a separate and distinct offense. If the construction attributed to the presiding Judge be correct, the lack of consent declared in the constitution supplies every element of common-law rape, which would render section 9 absolutely useless.
The point is clearly illustrated in the case of State v.Pickett, 11 Nev., 55, 21 Am. Rep. 754. The defendant was indicted for rape and was convicted of an assault with intent to commit rape. Upon appeal he excepted to the Judge's charge, in effect, that, if the maid was under 12 years of age, she was incapable of consent, and that the presumption followed that the act was forcible and against her will, and that, if his purpose failed, the defendant should be convicted of assault with intent to commit rape. The ground of the exception was that an attempt to commit rape can never constitute an assault where the act was committed with the consent of the maid. The Court defined the offense, in the words of Blackstone as "the carnal knowledge of a woman forcibly and against her will," and declared: "Under this definition, an assault is a necessary ingredient of every rape, or attempted rape. But it is not a necessary ingredient of the *Page 444 crime of carnally knowing a child under the age of twelve years, with or without her consent, which is defined in the latter part of the section, and which is called `rape.' It is obvious that here are two crimes differing essentially in their nature, though called by the same name. To one force and resistance are essential ingredients, while to the other they are not essential; they may be present or absent without affecting the criminality of the fact of carnal knowledge. As an assault implies force and resistance, the crime last defined may be committed, or at least attempted, without an assault, if there is actual consent on the part of the female."
Under the Nevada statute, the offense similar to that described in our section 9 was declared to be rape; our statute declares it a felony, "punishable as for a rape." The Court continues: "This is well settled in England, where, under the provisions of several statutes, the carnal knowledge of a female under ten years of age, with or without her consent, is made a `felony.' The statutory crime is not there denominated `rape,' and the English judges have escaped the confusion of ideas which in this country has no doubt arisen from the fact that two essentially different crimes have been called by the same name, leading our courts, in some instances, to attribute to the statutory rape all the qualities of common-law rape." The charge was held reversible error.
I do not thing that there can be the shadow of a doubt but that the jury was instructed that, if the child was under 14 years, and therefore incapable of consent, regardless of the essential elements of an assault with intent to ravish, the defendant might be and was convicted of that offense.
II. The verdict was as follows: "We the jury find the defendant guilty with recommendation to mercy of the Court" — upon the indictment which contained two counts, one charging a felony and the other a misdemeanor; the punishment for each being different from that for the other, no valid judgment could have been imposed thereon for the reason *Page 445 that it was impossible to say upon which count the verdict was based.
In the case of State v. Montague, 2 McCord, page 257, the syllabus is as follows: "Where there are two or more distinct counts in an indictment, charging different and distinct offenses, and punishable differently, a general verdict of guilty is bad."
In the opinion the Court said: "On the second ground, however, the motion must prevail. [The second ground was `the uncertainty of the verdict']. There are two distinct counts in the indictment, each charging the prisoner with a different and distinct offense. For each of which offenses, the law has provided a different and distinct punishment. A general verdict of guilty does not show of which offense he was guilty. The judgment of the Court, therefore, cannot be pronounced. A new trial is ordered."
In State v. Anderson, 1 Strob. 455, the syllabus is as follows: "Two or more separate offenses may be joined in the same indictment, provided the punishment be identically the same for each; and a general verdict would suffice, although there might be a defective count in the indictment." See, also, State v. Priester, Cheves, 103, citing the Montague case.
In State v. Pace, 9 Rich., 355, the Court said: "Where there are several counts alleging offenses to which different punishments are applicable, and some are bad, a new trial will be granted to ascertain the sense of the jury, but even in such cases the judgment will not be arrested." Citing the Montague case.
In State v. Major, 14 Rich., 76, the Court said: "It is rather the case of distinct counts in the indictment, each charging the prisoner with a distinct and independent offense, for each of which offenses the law has provided a different and distinct punishment, where the general verdict not showing of which offense he is guilty, the Court cannot know what judgment to pronounce. This was Montague's case, 2 McCord, 258." *Page 446
In State v. Smith, 18 S.C. 149, Judge McIver, after reviewing many authorities, concludes thus: "From this review of our cases, we think that the rule to be extracted from them is, that where several distinct offenses are charged in different counts of an indictment, all growing out of the same act or acts, even though subject to different punishments, a general verdict of guilty furnishes no ground for a motion in arrest of judgment, and no ground for a new trial, provided the jury have been explicitly instructedthat the effect of a general verdict will be to find the partyaccused guilty of the highest offense charged in the indictment, and that they have the right to designate in their verdict which one of the particular offenses charged they believe the accused to be guilty of."
In addition to this, the learned justice said: "In the case now before the Court, it is conceded that both of the offenses charged in the indictment grew out of the same act; and it appears that the jury were very explicitly instructed how to shape their verdict so as to show distinctly of what particular offense they believed the parties guilty."
The question is whether or not the charge conformed to these plain and direct requirements.
I do not find in the charge a single expression conforming with the requirement "provided the jury have been explicitly instructed that the effect of general verdict will be to find the party accused guilty of the highest offense charged in the indictment." The instruction was: "If you should find the defendant guilty as charged in this indictment with the crime of assault with intent to ravish, you will write on the back of this indictment `we the jury find the defendant guilty as charged' and sign your name as foreman."
I do not think that this could mean anything else than that, if they found the defendant guilty under the first count, they should write "guilty of assault with intent to ravish," which was the crime "as charged." They were not permitted *Page 447 to render a general verdict which they did; nor were they "explicitly instructed" what would be the effect of such a verdict.
The rule appears to be that, where an indictment contains counts which may properly be joined in the same indictment, the better practice is to direct the jury to pass in their verdict upon each count; but, if not, to instruct them explicitly upon the effect of a general verdict of guilty which appears to comply with the approved practice. See, also, State v. Burbage,51 S.C. 284, 28 S.E. 937; State v. Sheppard, 54 S.C. 178,32 S.E., 146; State v. Norris, 65 S.C. 287,43 S.E., 791; State v. Rountree, 80 S.C. 388, 61 S.E., 1072, 22 L.R.A. (N.S.) 833; State v. Bolyn, 143 S.C. 63,141 S.E. 165; 27 R.C.L. 856; State v. Johnson, 75 N.C. 123, 22 Am. Rep. 666.
I think therefore that the judgment should be reversed and a new trial ordered.
MR. JUSTICE BONHAM concurs in proposed result.