The opinion of the Court was delivered by
Mr. Justice Jones.This case was first heard at November term, 1896, but was reheard at the present term. The appellant, James Haddon, at the Court of General Sessions for Abbeville County, June term, 1896, was indicted and tried for rape, was found guilty, and recommended to mercy by the jury, and was sentenced to imprisonment in the state penitentiary for life. So much, of the material part of the indictment as is necessary for a clear understanding of tbe points raised is as follows: “That James Haddon, late of the county and State aforesaid, on the 28th day of March, in the year of our Ford one thousand eight hundred and ninety-six, with force and arms, at Abbeville Court House, in the county and State aforesaid, in and upon one Parralee Wimbush, in the peace of God and of the said State, then and there being, violently and feloni-ously did make an assault, and her, the said Parralee Wim-*310bush, then and there violently, against her will, feloniously di'd ravish and carnally know, against the form of the statute in such case made and provided, and against the peace and dignity of the same State aforesaid.” The first, fifth, and sixth exceptions relate to the admission of testimony, alleging error in allowing evidence of the age of Parralee Wimbush; the first and sixth, on the ground that the indictment did not allege that Parralee Wimbush was an unmarried woman; and the fifth, on the ground that there was no allegation as to her age in the indictment.
1 An examination of the record shows that when the solicitor asked a witness, “How old is Parralee Wimbush?” counsel for defendant objected to the same as irrelevant, and immediately withdrew the objection “for the present,” as stated. Then, when the same question was soon thereafter repeated, and the witness answered that Parralee was thirteen years old, defendant’s counsel again objected. The objection was not made until after the answrer was given. It is not error for a Circuit Judge to permit answer to be made to a question to which objection was made but withdrawn.
2 Besides this, it is not necessary in an indictment for rape, under the common law or under section 114, Criminal Statutes 1893, to allege the age of the person charged to have been ravished, nor is it necessary to allege therein whether the woman is married or unmarried, since both at common law and under the said statute rape may be committed upon' a woman or woman child of any age, maid or married. It will be observed that this is not an indictment for carnally knowing and abusing a woman child under the age of ten years, which was made a felony and punishable as rape under section 115, Criminal Statutes 1893, section 24G0, General Statutes 1882, which was amended by act approved March 9th, 1896, so as to read “fourteen” instead of “ten” years, wherein it would be necessary to allege the age of the child. The indictment alleges that the offense took place on the 28th day of March, *3111896, and the evidence was to the effect that the offense was committed before 12 o’clock on the night of the 28th of March, 1896. The act approved March 9th, 1896, under section 36, Revised Statutes 1893, did not take effect until the 29th day of March, 1896, the day after the crime was alleged to have been committed. This act, therefore, in so far-as it makes that a crime which was not a crime before, is not applicable to this case. Whether this act, in so far as it diminishes the punishment in any case where the woman or child is over the age of ten years, and the prisoner is found guilty with a recommendation to mercy, can be applied to this case, will he hereafter noticed. This indictment, therefore, was not and could nothavebeen brought under the act of 1896. Nor could it have been maintained under section 115, Criminal Statutes, since th.e child said to have been raped was over ten years old, and the indictment did not attempt to describe the crime therein prohibited. The indictment, then, must be referred to section 114 of the Criminal Statutes, or treated as indictment under the common law, in either of which cases it is not necessary to allege or prove the age of the victim of lust, nor whether she is married or not.
3 But while it is not essential under such indictment to allege and prove the age of the woman or child charged to have been ravished, it is often quite relevant to prove the age. For example, on the issue of force to overcome resistance or compel consent through fear, age becomes relevant, since a child of tender years would more readily yield through fear than a woman of maturer years. Such seems to have been the object of the evidence in this case, since the proof of age was brought out immediately after evidence tending to show that defendant was at the time of the alleged crime intoxicated, and armed with a pistol, which he exhibited. Moreover, since under the common law a child under ten years is presumed incapable of consenting to sexual intercourse, it is competent, *312under a common law indictment for rape, to inquire after the age of the female on the question of consent.
4 The third exception alleges error in failing to charge the jury that before they could convict they must be satisfied from the evidence that Parralee Wimbush was an unmarried woman at the time the offense was committed. This exception must be overruled for several reasons: First, because under this indictment it was not necessary, as stated above, for the State to allege or prove that Par-ralee was unmarried; second, to have charged this would have been to assert that rape could not be committed on a married woman; and third, there was no request to so charge. While under the present Constitution, as under the Constitution of 1868, it is the function and duty of the Judge to declare the law applicable to the issues and evidence in a case, still this does not dispense with the propriety and use of request to charge, and the omission to chargé a particular point or proposition of law is not reversible error unless the attention of the Judge is called to the omission by some request to charge, or the failure to so charge is clearly prejudicial to the party complaining.
5 The fourth exception is as follows: “Because his Honor, ruled that the age of consent was fourteen years, when he should have held that the defendant was entitled to be tried under the law as it stood at the time the act was committed, the age of consent then being ten years.” The record does not disclose that the Circuit Judge made any such ruling, unless it be in his charge to the jury, and the charge in this regard is not expressly excepted to. The exception is probably based on the charge of the Circuit Judge, as follows: “Now, in this case, if you come to the conclusion that this girl is under the age of fourteen, * * * then she cannot give her consent,” &c. The Judge, no doubt, had in mind sec. 33, art. III., of the Constitution, which is as follows: “No unmarried woman shall legally consent to sexual intercourse who shall not have attained the age of fourteen years.” This provision of the Constitution, *313which took effect from and after the 31st day of December, 1895, was a part of the fundamental law of the State on the 28th day of March, 1896, the date of the alleged crime. While under the common law the age of consent was ten years,'this rule was not of force in this State after December 31, 1895, except in so far as not abrogated by the constitutional provision cited. At the time of the alleged crime, no maid or unmarried woman under the age of fourteen years could consent to sexual intercourse. Hence, it would have been error to have ruled in accordance with appellant’s view that the age of consent at the time of the offense was ten years:
6 Was it error prejudicial to the defendant for the Circuit Judge to charge the jury, “If you come to the conclusion that this girl is under the age of fourteen, then she cannot give her consent.” We think not. If there was any error, it was in assuming that “this girl” was a maid, for, as we have seen, the law is, that no maid under the age of fourteen years can consent. But it is not complained that the Circuit Judge in his charge to the jury assumed as true any fact in issue in the case. But we are not at all surprised that in his ruling as to the age of consent, as applied to- that' particular case, he assumed that Parralee Wimbush was unmarried. So far as appears, up to the time of the verdict and motion for a new trial on the ground that there was no evidence that Parralee was an unmarried woman, there was nothing to suggest that there was any issue on this point. Counsel for defendant, during the trial, spoke of Parralee as “a girl,” “a girl as small and young as Parralee;” witness spoke of her as “a girl,” a “child;” it was proven that her name was Parralee Wim-bush, Wimbush being the surname of her father, and of her mother by marriage; she was but thirteen years old at the time of the trial, several months after the alleged crime; she lived in a room with her .mother, grand-mother, and one or more younger children, and no one else, as far as appeared in the evidence; the doctors who examined her *314a day or two after the alleged crime testified as to her condition; the child herself was in Court, and on the witness stand; there was nothing in all the testimony to suggest that she might possibly be married, notwithstanding the many circumstances in the case demonstrating to a moral certainty that she was a child unmarried. If we had the slightest reason to believe that the defendant was prejudiced by the ruling of the Circuit Court in the matter of the age of consent, we would send the case back for a new trial, however much we might regret to have repeated all the sickening details of the defendant’s brutal lust, but we have none. The uncontradicted testimony offered by the State tended to show that the defendant was intoxicated, and armed with a deadly weapon, which he freely exhibited, and that with threats to kill, if she made outcry, he accomplished his purpose several times without the consent and against the pleadings of the child, who was heard by others, themselves too intimidated to interfere, to cry out, “don’t, don’t, or you will kill me.”
7 We do not think it a sound proposition to say that, inasmuch as there was no allegation or proof that Parralee Wimbush was an unmarried woman underthe ageof fourteen years, therefore, the defendant under this indictment was entitled to be tried underthe common law rule fixing ten years as the age of consent. This view ignores the constitutional provision cited, which changed the common law rule. This provision of the Constitution did not, of itself, create a criminal offense. By its own operation there did not spring into existance such crime as the carnal knowledge and abuse of an unmarried woman under the age of fourteen years, which would require allegation in the indictment, and supporting proof that the woman was unmarried, and under fourteen years old. The constitutional provision operated only on the question of consent to sextual intercourse, creating a new rule of evidence in the proof of consent, declaring certain persons incapable of consenting. Therefore, as under the common law in an in*315dictment for rape, it was unnecessary to allege that the female was under ten 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. In this State, there may be an indictment for rape without alleging that the female is unmarried and under fourteen years old, and, under such indictment, it may be proven by the State, in its testimony in chief, that the female is unmarried, and under fourteen 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. We have shown that there was not only evidence on the part of the State tending to show that the sexual intercourse in this case was without the actual consent of Parralee Wimbush, was in fact had violently and against her will, as charged- in the indictment, but the State also offered evidence that she was under fourteen years old, and, as we think, showed facts and circumstances tending powerfully to establish that she was unmarried. From what has been said above, we think the Circuit Judge was correct in overruling the motion for a new trial, on the ground that there was no evidence before the jury that Parralee Wimbush was an unmarried woman, at the time the offense w7as committed; hence the third exception alleging error in this regard is overruled.
8 It was earnestly argued that the Circuit Judge erred in refusing to charge defendant’s second request to charge, as follows: “That if Parralee Wimbush consented to intercourse with the defendant, they cannot convict the defendant of rape.” The Circuit Judge refused to charge in that form. In the first place, it would be entirely sufficient to say that there is in the case no exception bringing this refusal to charge before us. But in the second place, the request was properly refused. The request to charge assumed as a fact that Parralee was capable of con*316senting, and failed to take into account, on the question of consent, the constitutional provision hereinbefore discussed.
The seventh and eighth exceptions are as follows: “7. Because his Honor erred in charging the jury that if they recommended to mercy, the punishment would be life imprisonment, whereas, he should have charged them that they should find the age of'the child by their verdict, and if the child was over ten years and under fourteen, where there was a recommendation to mercy, the sentence of the Court could not exceed fourteen years, but that if she was under ten years of age, it would be life imprisonment. 8. Because the jury having recommended the defendant to mercy, and the evidence showing that Parralee Wimbush was over ten and under fourteen, the Judge committed error in sentencing the prisoner to life imprisonment.” As to the seventh exception, even if it be admitted that there was error in the charge as to the effect of a recommendation to mercy on the sentence, still since the verdict contained a recommendation to mercy, such error, if any, was harmless to the defendant. But the charge was not erroneous, as we shall see in the consideration of the eighth exception.
9 The proviso to the act of 1896, 22 Stat., 223, amending sec. 115, Criminal Statutes, is as follows: “Provided, however, that in any case when the woman or child is over the age of ten years, and the prisoner is-found guilty, the jury may find a special verdict recommending him to the mercy of the Court, whereupon the punishment shall be reduced to imprisonment in the penitentiary for a term not exceeding fourteen years, at the discretion of the Court. It is well settled that where the punishment affixed to an offense has been reduced by a statute passed after the offense was committed, the punishment to be imposed is that fixed by the last statute. State v. Williams, 2 Rich., 418; State v. Cooler, 30 S. C., 105. In order that this rule may apply, the offense must be the same. In the case at bar the defendant was convicted and sentenced for rape, whereas the proviso above quoted pro*317vides for the punishement of one convicted for the carnal knowledge and abuse of a woman child under the age of fourteen. The two offenses, while .having- some points of resemblance, are distinct and separate. It is true, that in the body of this act it is provided, “If any person shall, unlawfully and carnally,-know and abuse any woman child zmder the age of fourteen years, every such unlawful and carnal knowledge shall be felony, and the offender thereof being duly convicted shall suffer as for rape,” whereas the proviso says, “where the woman or child is over the age of ten years,” still the provision must be construed with reference to the body of the act, and so construing, it means where the woman child (or woman or child) is over the age of ten years and under the age of fourteen years, punishment for unlawful carnal knowledge and abuse of her is made not to exceed fourteen years’ imprisonment where the jury recommended to mercy in their verdict. This, therefore, in no way affects the punishment provided for rape, in section 114, Criminal Statutes, wherein a recommendation to mercy by the jury renders the punishment to life imprisonment. Had the legislature intended to reduce the punishment for rape beyond this, it would have so provided in express terms. The eighth exception is overruled.
The judgment of the Circuit Court is affirmed.