dissenting.
10 As I cannot concur in the opinion of Mr. Justice Jones, I wish briefly to state the reasons for my dissent. Although the defendant was convicted of one of the most horrible crimes known to the law, and the testimony tends to show that, in gratifying his lust, he acted with unusual brutality, still his exceptions complaining of error on the part of the presiding Judge in the trial of the case against him are entitled to full and unprejudiced consideration by this Court. The indictment (so much of which as is necessary in considering the exceptions is set out in the opinion of Mr. Jus*318tice Jones) charges rape, but there are no allegations as to the age of the girl.
During the examination of one of the State’s witnesses, the following took place: “How old is Parralee Wimbush? (Mr. Miller, defendant’s attorney, objects, as being irrelevant; objection withdrawn for the present.) Did Jim have anything in his hand when he was there? Yes, sir; he had his pistol in his hand. How old is Parralee? Parralee is thirteen. (Mr. Miller objects. Objection overruled. Exception noted.) Mr. Miller: The Court will please note an exception, on the ground that the girl, being under fourteen years of age, the State should have alleged that she was under the age of fourteen. Court: Yes, sir.” The Court refused to charge the defendant’s second request, which is as follows: “That if Parralee Wimbush consented to intercourse with the defendant, they cannot convict the defendant of rape.” In his charge to the jury, the presiding Judge said: “If you come to the conclusion that she is under fourteen, then she cannot give her consent. The matter of consent is out. She might with her lips consent, but the Constitution, as adopted on the 4th of December last, makes the limit of age fourteen, and consent given with her lips, even if you find that, it would not be legal consent. So, if you find that she is under fourteen, the consent is out of the question.” The appellant’s fourth and fifth exceptions are as follows: “4. 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. 5. Because his Honor allowed testimony to be introduced as to the age of Parralee Wimbush, there being no allegation as to her age in the indictment.”
It is manifest, from the charge of the presiding Judge, that the testimony, as to the age of the girl, was introduced for the purpose of showing that she was incapable of consenting to sexual intercourse, under the provisions of the new Constitution, and, therefore, if the jury came to the *319conclusion that she was under fourteen years of age, the question of consent would be eliminated from their consideration. Rape and the unlawful carnal knowledge of an infant under ten (now fourteen years of age), are separate and distinct crimes, with different punishments prescribed by our statutes, when the jury find a special verdict, recommending the prisoner to the mercy of the Court. Under an indictment charging rape, but not alleging the age of the woman ravished, thé jury may find the prisoner guilty of rape, even when she is under fourteen years of age, if the carnal knowledge was against her will, and without her consent. But if the State desires to get the benefit of the statutory or constitutional provision as to consent, the indictment must allege the age of the woman, as that may be an issuable fact in the case. The rule is well settled that an indictment must allege every material fact which it is necessary to prove, in order to convict the party indicted. The syllabus of the case of the State v. O'Bannon, 1 Bail., 144 (the report of the case only contains the syllabus), says: “In an indictment under the third section of the St. 4 & 5 P. & M., 8, for taking away a yoiing woman under the age of sixteen years, against the consent of her parents, it is necessary to state that the defendant was above the age of foicrteen years, and that the person taken away was a maid or woman child. It is not sufficient to describe the latter by her name. In setting out an offense against a statute, the defendant must be brought within all the material words of the statute, and nothing can be taken by intendment.” The doctrine for which we contend is thus stated in 19 A. & E. Enc. of L., 956: “When the act is committed upon an infant under the age of consent, she must be described as such. But where her age is not alleged, a conviction may be had, if rape with force and against the consent of the child be alleged and proved.” Numerous authorities are cited to sustain these principles, which are certainly at variance -with the rulings and charge of the presiding Judge.. The case of the State *320v. Greer, 19 Am. Rep., 709 (50 Ind., 267), is so conclusive as to the necessity of alleging the age of the woman, in order to show that she was incapable of giving a legal consent to the unlawful carnal knowledge, that I will quote at length from it. The prisoner in that case was indicted for rape. The Court said: “It appeared on the trial of the cause, that the person charged to have been assaulted by the defendant was a female child,, between eleven and twelve years of age, at the time of the assault. The Court gave, as applicable to the case, the following charge, to which the defendant excepted, viz: ‘You will observe that if a person has carnal, knowledge of a woman child, under the age of twelve years, he. is guilty of rape, whether the carnal knowledge was with or without the consent of the child, for the law presumes that a child under the age of twelve years, is not capable of consenting to intercourse, so that a man having connection with her is guilty of rape, whether it was with her consent or not.’ * * * The charge may have been correct as an abstract proposition, but it was clearly wrong as applied to the charge contained in the indictment. The indictment charges that Mary F. Clayes, the person charged to have been assaulted, was a-woman, and that the defendant intended to carnally know her forcibly and against her will. The statute defining and providing punishment for rape, provides that ‘every person who shall unlawfully have carnal knowledge of a woman against her will, or of a woman child under twelve years of age, shall be deemed guilty of rape,’ &c. * * * This statute, it will be seen, enumerates two classes of facts, each of which constitutes a rape. First, it is a rape to unlawfully have carnal knowledge of a woman against her will. We take it that all females of the human species over twelve years of age are to be deemed women within the first clause of the statute. Second, it is a rape to unlawfully have carnal knowledge of a woman child under twelve years of age. In the second case, it is immaterial whether the child consents or not, for if she consents, the *321act constitutes a rape, nevertheless. But the prosecutor cannot charge a rape of the one class and sustain the charge by proof of a rape of the other class. Nor can he charge an assault and battery with intent to commit a rape of the one class, and sustain the charge by evidence of an intent to commit a rape of the other class. The variance between the allegations and the proof is fatal. This is established by the following among other authorities that might be cited: 1 Whart. Crim. Law, § 611; 1 Bish. Criin. Prac., 485, 886; Turley v. The State, 3 Humph., 323; Hooker v. The State, 4 Ohio, 348; The State v. Noble, 15 Me., 476; The State v. Jackson, 30 Id., 29; Dick v. The State, 30 Miss., 631.” These views are sustained by the case of State v. Houx, 32 Am. St. Rep., 686 (109 Mo., 654), in which the Court says: “It is very clear that the age of the child, at the time of the act, is a fact upon which the criminality of the act absolutely depends, and it should, therefore, be clearly and definitely charged. * * * As has been said, the age of the girl was a material fact to be specially charged in the indictment and proved upon the trial.” The following appears in the notes to that case in the Am. St. Rep., sitpra: “An indictment for rape of a female of unmentioned age will not support a conviction of the offense of carnal knowledge without the consent of a female under the age of puberty. Warner v. State, 54 Ark., 660.” In the notes to Arch. Cr. Pr. & PL, page 999 (8th edition), we find the following: “An indictment which charges that the defendant, by force, and against the will of the female, ravished and carnally knew her, need not aver that she was of the age of ten years or more, such allegation only being necessary when the indictment does not allege that the act was done against her will. Com. v. Sugland, 4 Gray, 7. But if the female be under the age of ten, then the fact should be averred; because abusing such a female is made felony by statute, whether she consents to the act or not. State v. Farmer, 4 Ised., 224.” If the indictment had alleged that Parralee Wimbush was under fourteen years, then it *322would have charged the statutory offense of unlawfully and carnally knowing and abusing a woman child under fourteen years of age.
It seems to me the opinion of Mr. Justice Jones practically decides that testimony showing that the woman was under fourteen years of age, when the age is not alleged in the indictment, is admissible to sustain the charge of rape, but when the age is alleged in the indictment, and the proof corresponds with the allegations, the defendant can only be convicted of the statutory offense of unlawfully and carnally knowing a woman child under fourteen years of age; that a person can be convicted of rape upon the same testimony that would sustain the allegations of an indictment charging him with the statutory offense of unlawfully and carnally knowing a woman child under fourteen years of age; that as a person can be convicted of rape on the same testimony that would sustain the allegations of an indictment charging the statutory offense aforesaid, the solicitor would have the right to determine the punishment in case of a recommendation by the jury to the mercy of the Court, by handing out an indictment for whichever of said crimes he might see fit. I see no use in keeping sec. 115, Crnn. Thaw, on our statute book, if the views of Mr. Justice Jones are correct, unless for the purpose of enabling a solicitor beforehand to determine what shall be the punishment in case the jury recommends to mercy, as that section is practically annulled.
For these reasons I think the judgment should be reversed, and a new trial granted.