Appellant was convicted of an attempt to commit a rape. The countin the indictment charging the offense of which he was convicted, omitting the formal parts, charged that defendant “did then and there wilfully, purposely and feloniously make an assault in and upon the person of Willie Ogle, a female, and did then and there by force attempt to ravish and carnally know her, the said Willie Ogle, without her consent and against her wish,” etc.
One would naturally conclude that the female thus alleged to have been assaulted was over ten years; because the age is not stated and the act is alleged to have been committed by force “ without her consent and against her wish.” Where the injured female is under the age of ten years it is neither necessary to allege in the indictment nor to prove on trial that the offense was committed “ with or without consent and with or without the use of force, threats or fraud,” because carnal connection with a female of such tender years is per se rape under any and all circumstances, whether with her consent or not. (Penal Code, art. 528.) Allegations, then, of force, threats and fraud should in such cases never be used. Standard precedents and prescribed forms do not contain them. (1 Whart. Prec. of Ind., 189, 190; 1 Bish. Crim. Proc., § 481; Willson’s Crim. Forms, Nos. 374, 375, pp. 167, 168; Mayo v. The State, 7 Texas Ct. App., 342; Gibson v. The State, 17 Texas Ct. App., 574; 50 Conn., 578.)
In the case under consideration the evidence shows that the assaulted party was a female child eight years old and tended strongly, if it did not in fact, show her consent to the act. In view of the allegation and the proof as to age, appellant’s counsel asked a special instruction to the jury as follows: “ The State having alleged that *279the defendant made the assault upon Willie Ogle with intent to have carnal knowledge of her, without her consent, the State must prove that the said Willie Ogle did not consent to the act. The age of said Willie Ogle is immaterial in this case, as her age is not set forth in the indictment. If you believe from the evidence that the said Willie Ogle did consent to have intercourse with the defendant, you will acquit the defendant.” This instruction was refused by the court, and a bill of exceptions was promptly reserved by the defendant.
Was the instruction the law of the case? We think so most clearly. Under the indictment, the allegations of force and that the act was without her consent and against her wish were allegations descriptive of the identity of the offense. Without them — there being no allegation that she was under the age of ten years — no offense would be charged; in other words, these allegations cannot be held or treated as surplusage, and by eliminating them enough be left in the indictment remaining to charge an offense. (Mayo v. The State, 7 Texas Ct. App., 342; Gibson v. The State, 17 Texas Ct. App., 574.)
■ The rule is that whenever there is a necessary allegation which cannot be rejected, yet the pleader makes it unnecessarily minute in the way of description, the proof must satisfy the description as well as the main part, since one is essential to the identity of the other. (1 Bish. Crim. Proc., § 485; Warrington v. The State, 1 Texas Ct. App., 168; Holden v. The State, 18 Texas Ct. App., 91; Childers v. The State, 16 Texas Ct. App., 524; Davis v. The State, 13 Texas Ct. App., 215; Jones v. The State, 12 Texas Ct. App., 424.) “No allegation, whether it be necessary or unnecessary, whether it be more or less particular, which is descriptive of the identity of that which is legally essential to the charge in the indictment, can ever be rejected as surplusage.” (Warrington v. The State, 1 Texas Ct. App., 168.) It was error to refuse the special requested instruction of defendant as above copied.
There is another question in this case, which is of novel character owing to the language of our statutes bearing upon it. By express provision of the statute the crime of rape may be presented for prosecution within one year and not afterward. (Code Crim. Proc., art. 197.) No special limitation is fixed with regard to prosecutions for attempts to commit rape or assaults with intent to commit rape. (Penal Code, arts. 535, 503.) There is a general provision, however, to the effect that “ an indictment for all other felonies may be presented within three years from the commission of the offense, and not afterward.” (Code Crim. Proc., art. 199.)
*280It is contended that the court erred in charging the limitation of three years as applicable to this crime, and that the same limitation applies as fixed for rape, because rape is an offense including different degrees,— our statute expressly providing that “ every offense against the person includes within it assaults with intent to commit said offense when such attempt is a violation of the penal law,” and “ every offense includes within it an attempt to commit the offense when such attempt is made penal by law.” (Code Crim. Proc., art. 714, subdivis. 12 and 13.)
We can see no good reason why a prosecution for rape should be required to be commenced in one year and prosecutions for the minor degrees and-grades of the crime should not be barred under three years. Such is, however, the law. With regard to other crimes admitting of and including degrees, there are also differences as to limitation between the major and minor degrees. Murder, for instance, is never barred, whilst its degrees, from manslaughter down, are. In rape, however, if the general provision quoted above applies to the degrees of rape, we have the anomalous condition that the major offense is barred sooner than any of its degrees. Acts of limitation being acts affecting the remedy only are peculiarly within the scope of legislative action and control, and are regulated by no inflexible rules as to the time prescribed within which they are to operate. They may then be changed, or may be fixed arbitrarily at any time, so as that they are not made to apply to rights already vested. But a right in a remedy merely cannot vest. (Crawford v. Bender, 33 Texas, 745.)
The fact that we cannot see the reason of the rule in such cases cannot render those rules of limitation nugatory, and the maxim that where the reason of the rule fails the law ceases to operate does not apply to limitations. The one year’s limitation having been expressly restricted to the offense of rape cannot control the minor degrees of that crime, because the particular enumeration excludes offenses not enumerated, and, there being no special time fixed for the minor degrees, they would fall within the purview of the general statute of three years provided for “all other felonies.” (Code Crim. Proc., art. 199.)
The court, therefore, did not err in its charge upon the limitation of the case. In this case there was really no occasion to charge as to limitation, because one year had not elapsed between the alleged commission of the offense and the commencement of the prosecution by the presentation of the indictment. And the rule is, that where there is no issue of limitation raised by the evidence it is unnecessary to charge the law of limitation. (Hoy v. The State, 11 *281Texas Ct. App., 32; Vincent v. The State, 10 Texas Ct. App., 331; Cohen v. The State, decided at the present term, ante, p. 224.)
[Opinion delivered February 6, 1886.]But because the court erred in refusing to give the special requested instruction above discussed, and because the evidence shows consent on the part of the prosecutrix, and does not, therefore, sustain the allegations in the indictment, the judgment is reversed and the cause remanded for another trial.
Reversed and remanded.