dissenting from the ruling announced in the first heaclnote and corresponding division of the opinion.
The assignment of error and contention of the plaintiff in error, as set out in the first division of the opinion, are sufficiently stated, *862and need not be here repeated. It will be perceived that the indictment was drawn under § 93 of the Penal Code, which provides: “ Pape is the carnal knowledge of a female, forcibly and against her will." ■ On the basis of this law it was held in McMath v. State, 55 Ga. 303: “ Upon the trial of an indictment for rape, it was competent to show that the female upon whom the crime was alleged to have been committed was under ten years of age, though the indictment contained no such allegation." It was also held: “ There was no error in the charge of the court to the effect that it was not necessary to show that the carnal knowledge was forcibly and against the will of the female, she being a child under ten years of age." In Stephen v. State, 11 Ga. 225, it was said, in the course of the opinion: “ Anciently it was doubted whether a rape could be committed upon a child under ten years of age. And therefore the act of 18 Elizabeth, ch. 7, § 4, was passed. The authorities going to show that a rape, at common law, could be committed on a female under ten years, considered it immaterial whether she consented or not. . . The common-law principle is, that a child under ten years of age is incapable of consenting. The same construction has been put upon the statute of Elizabeth. Hence Lord Hale denies rape to be, the carnal knowledge of any woman above the age of ten years, against her will, and of a woman child under the age of ten years, with or against her will. I Hale, P. C. 628.” In Gosha v. State, 56 Ga. 36, it was said in the opinion: “ The defendant was indicted and found guilty of rape. He moved for a new trial, and error is assigned here on two grounds: first, that the court erred in charging that a female child under ten years of age could not consent to sexual intercourse, so as to show that the act was not done forcibly or against her will, there being some proof of her consent; and secondly, because the venue was not sufficiently proven; and these are the two questions the record before us makes. 1. As to the. first question, the rule at common law is well established, and we think founded in wisdom: See 4 Blaclcstone (Cooley), 210, 212. It has also, in effect, received the sanction of this court: Stephen v. The State, 11 Georgia Reports, 238. We shall not disturb it. That rule is, that her tender years concludes the question — she cannot consent."
The indictment in the present case was brought under these au*863thorities. If the female had been under 10 years of age, it would have been proper for the judge to have instructed the jury in effect that she was incapable of giving consent, and that sexual intercourse with her by a man would be deemed -in law as forcibly and against her will and characterized as rape; but the act of 1918 (Acts 1918, p. 259) made a different provision. Section 1 of the act declares: “Be it enacted by the General Assembly of the State of Georgia, and it is hereby enacted by authority of same, that from and after the passage of this act it shall.be unlawful for any person to have sexual or carnal intercourse with any female child under the age of fourteen (14) years, unless such person shall have previously become lawfully married to such female child.” Section 2 declares: “ That any person violating the provisions of section 1 . . . shall be punished as prescribed by section 94 of the Penal Code of Georgia of 1910, unless the jury trying the cause shall recommend that the defendant be punished as for a misdemeanor, in which event the same shall be made the judgment and sentence of the court. Provided, however, that no conviction shall be had for said offense on the unsupported testimony of the female in question.” ‘ Section 3 repeals conflicting laws. This is a penal statute," and must be strictly construed. It purports to denounce, as rape, acts of sexual intercourse with a female that would not have been rape under the Penal Code, § 93, if the female consented. The basis of rape on a female child under 10 years of age, under the old law as indicated above, was the incapacity of the child to consent; yet in the act of 1918 incapacity of the child to consent is not mentioned. The act just baldly denounces as unlawful, and as constituting rape, sexual intercourse with a female child under the age of 14 years, which of course includes children between the ages of 14 and 10 years, the latter being the youngest age at which a child could consent under the old law. The caption of the act'of 1918 mentions incapacity of a female child under 14 years of age to consent to sexual intercourse. The language of the caption is as follows: “ An act to define and fix the age at which female children may lawfully consent to acts of sexual intercourse; to provide a punishment for a violation thereof; and for other purposes.” While it is proper to consider the caption of an act in construing doubtful language in the body of the act, the caption is no part of the *864law contained in the enactment, and its terms cannot be.imported into the body of the act. Bentley v. State Board of Medical Examiners, 152 Ga. 836, 839 .(111 S. E. 379); Brown v. Erie Railroad Company, 87 N. J. Law, 487 (91 Atl. 1023, Ann. Cas. 1917C, 496); Memphis St. Ry. Co. v. Byrne, 119 Tenn. 278, 104 S. W. 460).
The act recognizes that a child under 14 years of age may consent to be married and be of sufficient mental and physical development to consent to sexual intercourse, bat nevertheless denounces as rape such sexual intercourse if the man is not lawfully married to the female. As applied to a female child over the age of 10 years and under .the age of 14, sexual intercourse with her by a man not lawfully married to her is rape, whether or. not the act is with or without her consent or against her will, notwithstanding she might have capacity under the general law to assent to such act of sexual intercourse; and the act of 1918 did not deprive her of that capacity. Such being the character of the offense of rape as defined in the act of 1918, in order to conVict a defendant of that offense alleged to have been committed upon a female between the ages of 10 and 14 years, the indictment should conform to the provisions of that statute, and a conviction could not be had for rape of a child between such ages under an indictment which alleged the carnal knowledge of a female forcibly and against her will, but contained no allegation that she was under the age of 14 and unmarried. In Vasser v. State, 55 Ala. 264, it was held: “Rape (Rev. Code, § 3661), and having carnal knowledge of a female under ten years of age (§ 3663), though kindred offenses, and punished in the same manner, are not identical; and although a rape may be committed on a female under ten years of age, the offender can not be indicted for it as a rape under the former statute, and convicted under the latter.” In the course of the opinion it was said by Manning, J: “By section 3661 of the Revised Code, e any person who is guiltyof the crime of rape must, on conviction, be punished, at the discretion of the jury, either by death, or by imprisonment in the penitentiary for life, or by hard labor for the county for life/ According to section 3663, ‘ any person who has carnal knowledge of any female under the age of ten years, or abuses such female in the attempt to have carnal knowledge of her, must, on conviction, be punished, at the *865discretion of the jury, either by death, or by imprisonment in the penitentiary for life, or by hard labor for the county for life/ Although the offenses denounced in these sections are punishable in the same manner, they are not identical; and accordingly a different form of indictment is prescribed for each. Bev. Code, S08-9, No. 7 and No. 8. A man who is indicted for rape, is warned thereby that he is prosecuted for a crime against a woman, done by force, and without her consent.' If the act which is a necessary constituent of the crime has been committed, his acquittal depends on the failure to prove to the satisfaction of the jury that it was-done by force, or without the consent of the woman. This is the point upon which he must make his defense. ELe is not notified that it behooves him to be prepared to controvert any other testimony than that which is to prove that the act was done, and done under those circumstances. An indictment under section 3663, on the contrary, does not charge that the offense imputed to the accused was done by force, or without the consent of the female. Evidence that it was would not avail to acquit him. His 'acquittal must depend, either upon the failure to convince the jury that the act was done by him, or the failure to convince them that the female was under ten years of age — one or the other. The defendant is thus enabled, as the law intends he shall be, 'to prepare to meet the evidence upon the charge against him, with the proper counter evidence to vindicate him, if he be innocent.” In 33 Cyc. 1453, it is said: “Under an indictment charging a particular offense a conviction cannot be had upon proof of another and distinct offense. If the indictment charges rape, or attempt or assault with intent to rape, by force and against the will of the female, not alleging that she was under the age of consent, there can be aro conviction on proof that the female was under the age of coaasent, unless there is also proof of force arad want of coaasent, where the statute makes rape by force and carnal knowledge of a female under the age of coaasent distinct offenses; but it has been held otherwise where the statute does not make them distinct offenses.” See also People v. Ruiz, (Cal.) 192 Pac. 327; Jenkins v. State, 34 Texas Cr. 201 (39 S. W. 1078); Morgan v. State (Texas), 50 S. W. 718; Munoz v. State, 47 Texas Cr. 577 (85 S. W. 11); State v. Wheat, 63 Vt. 673 (22 Atl. 720); Bonner v. State, 65 Miss. 393 (3 So. 663); Warner v. State, 54 Ark. 660 *866(17 S. W. 6). It follows from what has been said that the judge erred in the charge to the jury upon which error was assigned.