The opinion of the court was delivered by
Anders, J.The appellant was tried and convicted upon an information charging that “the said J. W. Halbert, on the 20th day of December A. D., 1894, in said Snohomish county, State of Washington, did unlawfully and feloniously carnally know and abuse one Emma Halbert, then and there being a female child under the age of sixteen (16) years, against the peace and dignity of the State of Washington.”
After overruling a motion for a new trial, the trial court sentenced the defendant to imprisonment in the state penitentiary for a period of fifteen years.
The accused is the father of the said Emma Hal-bert, and it is conceded that the latter, at the time of the alleged offense, was over thirteen years of age. Appellant challenged the sufficiency of the information in the superior court by demurrer, and he here insists that, inasmuch as it is not alleged in the information that carnal knowledge of the prosecutrix was accomplished by force, and against her will, or that the prosecutrix was, at the time stated, under the age of twelve years, no crime was charged against him and his conviction was illegal.
The question thus presented for determination is, *308“ what is the age of consent under the law of this state ? ” If it is twelve years, as claimed by appellant, the objection to the information should have been sustained, but if it is sixteen as assumed by the prosecuting attorney and the trial court, the information is sufficient, notwithstanding the further objection that it does not state that appellant was not the husband of the prosecutrix. 2 Bishop, Crim. Proc., § 956.
Sec. 28 of the Penal' Code, which is the statute upon which appellant bases his contention, provides that, “If any person ravish and carnally know any female of the age of twelve years or more, by force and against her will, or carnally know and abuse any female child under the age of twelve years, he shall be punished by imprisonment in the penitentiary for life or any term of years.” This section was § 812 of the Code of Washington (1881) and was incorporated in the present Penal Code, by the compiler, as a part, of the existing criminal law. The compilation of the volume containing it, as well as that containing the general statutes of the state, was authorized by the legislature, and the compiler, who was thereby designated as commissioner, was directed, as soon as-possible after the adjournment of the legislature in, 1891, and within ninety days, to publish in two royal octavo volumes the general statutes then in force, including the code of 1881, and the general laws passed at said session, and to deliver to the secretary of state-one thousand copies of the same printed and bound in the best style of law book publishing. (Laws-1889-90, p. 236). These volumes were prepared and published, at great expense to the state, and were distributed by the secretary of state, by direction of the legislature, to the various justices of the peace, judges of the courts and prosecuting attorneys throughout *309the state, for their guidance in the discharge of their respective duties. They were understood, both by the legislature and the commissioner, to contain all the existing laws of the state. The codes therein contained are constantly referred to by the bench and bar as the “Code of Procedure” and “Penal Code” of this state, and are generally recognized and relied upon as being such. For these and other reasons that might be suggested, we may, we think, with the utmost propriety hesitate to pronounce the section above quoted, or any other provision of the Penal Code, invalid, until it is clearly shown that it does not, in fact, express the existing law concerning the subject of which it speaks.
It is claimed, however, on behalf of the respondent, that this § 28, or, which is the same thing, § 812 of the Code of 1881, was amended by the legislature in 1886 (Laws 1885-6, p. 84), by substituting the word “ sixteen ” for the word “ twelve ” where the latter appears in said § 812, and that this amendatory act has never been repealed, and, must, therefore, be declared to be the law. On the other hand, appellant insists that this alleged amendatory and repealing act was void because its object was not expressed in the title, as required by the Organic Act of the then territory, and in support of his position cites the cases of Harland v. Territory, 3 Wash. T. 131 (13 Pac. 453), and Rumsey v. Territory, 3 Wash. T. 332a (21 Pac. 152.) Those cases were, of course, decided prior to the organization of the state, and, according to the doctrine therein announced, the act of 1886, now under consideration, was absolutely void for the reason that it was designated in its title as “An Act to amend § 812 of the Code of Washington Territory,” without any other or further expression of its object.
*310By §2 of art. 27 of tbe constitution, it was provided that all laws then in force in the Territory of Washington, which were not repugnant to the. constitution, should remain in force until they should expire by their own limitation, or be repealed by the legislature. If, therefore, the act in question was not in force at the time of the adoption of the state constitution, it necessarily follows that it never became the law of this state, and that the section which it attempted to amend is still the law. Was it then in force? The highest judicial tribunal of the territory said if was not, and for this reason, no doubt, it was omitted from the compilation of “existing laws;” and, under the circumstances, we do not think that we ought to overrule its decisions.
. But it is.suggested on the .part of the respondent that this court, in Marston v. Humes, 3 Wash. 267 (28 Pac. 520), established a rule directly contrary to that announced by the supreme court of the territory, in the cases above mentioned. In that case we had under consideration an act of the state legislature, entitled “An Act relating to pleadings in civil actions, and amending sections 76, 77 and 109 of the Code of Washington;” and we were unanimously of the opinion that, under the constitution, the title was sufficiently expressive of the object of the act. However, in the course of the opinion it was distinctly stated that the decision was based upon the constitution of the state, and not upon the limitations contained in the organic act of the territory. But, while it appears from the opinion in that case that this court would hold that a section of the code might be amended by an act whose title simply provides for the amendment of such section by reference to its number, still it does not follow that we ought, on that, account,.to hold a territorial *311statute valid which was, in effect, declared invalid by the supreme court, and was so considered at the time of the adoption of the state constitution.
What we have already said disposes of this case, but still it may not be improper to observe that, in our opinion, the learned trial court erred in refusing to give to the jury the seventh instruction requested by the defendant, and also in permitting the witness Edith Halbert to state what was said in a conversation between herself and her mother, in the absence of defendant, on the morning following the alleged rape, with reference to what appellant did and said during the previous night.
The judgment is reversed and the cause remanded with directions to sustain the demurrer to the information.
GordoN, J., concurs. Hoyt, C. J., and Dunbar, J., dissent.