(dissenting). — This appeal comes from Buchanan county, and was taken because defendant was convicted under an indictment bottomed on tbe violation of tbe prohibition contained in section 1838, Revised Statutes 1899, and bis punishment assessed at one month’s imprisonment in tbe county jail, and tbe payment of a fine of $500.
Tbe cited section, enacted in 1895, is tbe following: “If any person over tbe age of sixteen years shall have carnal knowledge of any unmarried female, of previously chaste character, between tbe ages of fourteen and eighteen years of age, be shall be deemed guilty of a felony, and upon conviction shall be punished by imprisonment in tbe penitentiary for a term of two years, or by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in tbe county jail not less than one month or more than six months, or by both sucb fine and imprisonment, in tbe discretion of tbe court.”
Immediately above tbe section quoted, is section 1837 of tbe same revision, and reads in this way: “Every person wbo *205shall be convicted of rape, either by carnally and unlawfully knowing any female child under the age of fourteen years, or by forcibly ravishing any woman of the age of fourteen years or upward, shall suffer death, or be punished by imprisonment in the penitentiary not less than five years, in the discretion, of the jury.”
The section last above mentioned has, with some modifications as to punishment, been on our statute books ever since section 23, p. 170, Revised Statutes 1835, was enacted, and probably before that time.
In 1879, section 1253 was enacted, and there an amendment occurred, which so amended section 23, General Statutes 1865, p. 780, as to suffer the awarding of the penalty of death, and also added the words, “in the discretion of the jury.” Such amendment made the law as it is to-day.
Rut as far back as section 10, 1 Revised Statutes 1855, an offender, whose offense was punishable by imprisonment in the penitentiary for a term not less than any specified number of years, and no limit to duration of such punishment declared, the offender might be imprisoned during his natural life, or for any number of years not less than those prescribed. [Gen. Stats. 1865, p. 826, sec. 10; R. S. 1879, sec. 1660; R. S. 1889, sec. 3955; R. S. 1899, sec. 2375]. So that those words, “in the discretion of the jury,” seem to have added naught to the force and effect of the given section. The pertinency of these prefatory observations, and the citation of the above sections, will appear in the following investigation.
Defendant makes assertion that section 1838 is unconstitutional in that it deprives defendant of the right of trial by jury as guaranteed by section 28, article 2 of our State’s Constitution, which declares': “The right of trial by jury [as heretofore enjoyed] shall remain inviolate.” The bracketed words show the difference between a corresponding section and article in the Constitution of 1865, and the section above quoted, and the words added to the latter. It has been ruled *206respecting these words that whatever was the status of that right at the time the Constitution of 1875 was adopted, was the status referred to in that instrument. [State v. Bockstruck, 136 Mo. loc. cit. 358, and cas. cit.; Ice Co. v. Tamm, 138 Mo. 385, and cas. cit.]
In Michigan, the provision of the Constitution of that-State, similar to our own, is this: “The right of trial by jury shall remain.” Under that provision, a statute was challenged as to its constitutionality, which authorized persons charged with cutting timber on State lands, to be tried in some county other than that in which the offense was committed. Discussing that statute in the light of that constitutional provision, Judge Cooley characterized the act as not only tyrannical and oppressive but manifestly in conflict with one of the plainest and most important provisions of the Constitution. Proceeding further, that jurist observed: “The right is to remain. What right? Plainly the right as it existed before; the right to a trial by jury as. it had become known to the previous -jurisprudence of the State. [Underwood v. People, 32 Mich. 1.] The right is not described here; it is not said what shall be its incidents; it is mentioned as something well known and understood, under'a particular name; and by implication at least, even a waiver of its advantages is forbidden. If the accused himself can not waive them, plainly the Legislature can not take them away. The next section of the Constitution repeats the guaranty of this method of trial In every criminal prosecution/ and nothing is better settled on the authorities than that the Legislature can not take away a single one of its substantial and beneficial incidents.” [Swart v. Kimball, 43 Mich. loc. cit. 448.]
At common law the jury impaneled to try a criminal cause could, when finding against the defendant, either bring in a verdict of guilty (whereupon the court fixed the punishment), or else make .a special finding of facts and leave the result of determining the fact of guilt, and also of fixing the *207duration of amount of the punishment to the court; to use the language of Blackstone in regard to the verdict in such cases, he says: “And such public or open verdict may be either general, guilty, or not guilty; or special, setting forth all the circumstances 'of the case and praying the judgment of the court, whether, for instance, on the facts, stated, it be murder, manslaughter, or no crime at all. This is where they doubt the matter of law, and therefore choose to leave it to the determination of the court; though they have an unquestionable right of determining upon all the circumstances and finding a general verdict, if they think proper to so hazard a breach of their oaths, and if their verdict he notoriously wrong, they may be punished and the verdict set aside by attaint at the suit of the king, but not at the suit of.the prisoner.” [4 Bl. Com. (Lewis’s Ed.), 361.]
And under the common law a defendant on trial for a felony had no constitutional right to have the measure of his punishment fixed by a jury. [Ib., 2 Hal.P. C. 310.]
Not only was a prisoner at common law denied the right of having the measure of his punishment determined by a jury, but even when the jury found a verdict in favor of the accused, such verdict was liable to be set aside, if in the opinion of the trial judge it was “notoriously wrong,” and the jury were punished and their verdict set aside by attaint at the suit of the king, but not at the suit of the prisoner, in case of his conviction. Such was the right of trial by jury in its sum total, in its tout ensemble, as it was known, practiced and existed at common law. Was there any change in this State in. regard to that right and in the methods of its practice as known and practiced at common law ? Yes, changes most radical were effected, at least as early as the statutes of 1835, which provided: “Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, or assess a punishment not authorized by law, and in all cases of judgment on *208confession, the court shall assess and declare the punishment, and render judgment accordingly.” [R. S. 1835, p. 493, sec. 4; R. S. 1845, p. 883, sec. 4; 2 R. S. 1855, p. 1196, sec. 5; Gen. Stats. 1865, p. 852, sec. 5.]
And the statutes since 1825 have fixed the punishment to-be awarded for murder in the first degree. [Revised Laws 1825, p. 282, sec. 3; R. S. 1835, p. 168, sec. 3; R. S. 1845, p. 344, sec. 3; 1 R. S. 1855, p. 559, sec. 3; Gen. Stats. 1865, p. 778, sec. 3.] That punishment is death, and has so continued down through every subsequent revision. That punishment is assessed by the law, and with its assessment neither jury nor court have any hand or concern whatever. And for-this reason, it is a matter wholly irrelevant to the present discussion to examine what the court could do under the territorial laws, in regard to fixing the punishment in murder and rape cases. Such investigations savor too much of the last-year’s-bird’s-nest theory; as well might we go back to the French laws that prevailed in this country prior to the “Louisiana Purchase.”
The common law in its right of trial by jury has never prevailed in this State, so far as our reports and statutes show; certainly not since 1835. Since that period such a verdict as a special verdict in a criminal case as above described, or the setting aside of a verdict by attaint at the suit of the State' when in favor of a defendant because “notoriously wrong,” and the punishment of a jury for returning such wrong verdict, have never been known in this State. And yet those things were part and parcel, were but incidents and concomitants of the right of trial by jury as known and practiced at common law.
With matters in this statutory posture; with the duties of' a jury in returning a verdict and of the court when such verdict should be returned, firmly and explicitly established by-positive law, and with oiir jurisprudence in regard to such-matters settled by not infrequent decisions of this court, the-*209Constitution of 1875 was adopted. What does that Constitution say touching the point in hand ? It says: “The right of trial by jury (as heretofore enjoyed) shall remain inviolate.” Enjoyed where, when or how ? Enjoyed as it existed at common law? Enjoyed as it existed in England? Enjoyed as it existed when this State was a territory % The Bill of Eights does not thus declare. Had it been intended that that right-was to be measured and defined by its definition and limitations as known and existing at common law, then the framers of our Bill of Eights were singularly unfortunate in their use of language. Had they designed to perpetuate the right as it existed at common law, they would have so declared in terms too plain to be misunderstood. They said “as heretofore enjoyed.” Enjoyed where ? why here in Missouri, and not in any foreign country. Enjoyed as it had been laid-down in our statutes and expounded in our frequent decisions, prior to the adoption of the Constitution of 1875; that is what was meant, and only that. And this court has so decided in State v. Bockstruck, 136 Mo. loc. cit. 358.
For sixty-seven years the right of trial by jury has been enjoyed in this State as pointed out in our statute and practiced in our courts, and now at this late day we are gravely told that in spite of nearly three-quarters of a century of statutory definition and judicial practice and exposition, the Legislature could, at a word, wipe out all these statutory provisions; wipe out the twenty-eighth section of the Bill of Eights, and restore to full vigor the common-law right of trial by jury, with all its crudities, injustice and barbarisms. I do not believe it.
In Ice Co. v. Tamm, 138 Mo. 385, touching the right of • trial by jury, quotation is approvingly made from Edwardson v. Garnhart, 56 Mo. 81, where Judge Yories said: “It is not to be presumed that the provision of the Constitution relied on was intended to change the law as it them existed and *210had. been practiced in the State for a quarter of a century; the object of the framers of the Constitution must have been to preseiwe the right of trial by jury, as it then existed and had been practiced in this State, and not to establish a new rule of practice on that subject. This, then, was the state of the law when the Constitution of 1815 was framed and submitted to the people of Missouri for adoption. As then understood and construed by the court of last resort in this State, neither the Constitution of 1820 nor that of 1865 prohibited the courts from referring cases without the consent of either party in the cases mentioned in the statutes. The right to a jury trial then was modified to this extent by this power to appoint referees. These references had been sanctioned by the statutes, and the opinions of the Supreme 'Court many years before that Constitution was framed and when the people adopted it, they ratified the provision as to jury trial as it had been enjoyed previously thereto; that is to say, they adopted it with the construction aNeady placed upon it; otherwise, the words £as heretofore enjoyed’ are utterly meaningless.” And it was further said in that ease in concluding the opinion: “As the statute itself is an exception to the right of trial by jury, we shall not extend it by loose construction.”
If the language just quoted is good law as to a reference case, why not eqfially good and equally applicable to the case at bar ? If not, why not ?
I take it then, as twice decided by this court, the Constitution of 1815 upon its adoption had the effect to perpetuate and place beyond legislative interference any beneficial or favorable incident pertaining to the right of trial by jury as it existed at the time that Constitution was adopted. Among those substantial, favorable and beneficial incidents pertinent to such right, was the coincident right to have the jury assess the punishment in all cases of felony. And, of course, the constitutional provision and guarantee that “the right of'trial by jury as heretofore enjoyed, shall remain inviolate,” would *211apply as well to all newly-created felonies as to those in existence when the present Constitution was adopted. This point has jjassed into precedent.
Thus in the Court of Appeals of New York it is said: “ ‘Trial by jury in all eases in which it has heretofore been used shall remain inviolate forever,’ is broad enough and efficacious enough to secure it. The expression, ‘in all cases in which it has heretofore been used,’ is-generic. It does not limit the right to the mere instances in which it had been used, but extends it to such new and like cases as might after-wards arise. Eor instance, felonies were triable only by juries. I do not doubt that all new felonies must be- tried that way, and that by force of this section. . . . The other section does require it, as well in new felonies as in old, because they belong to the class of cases in which, at the adoption -of the Constitution, such a trial was used.” [Wynehamer v. People, 13 N. Y. loc. cit. 426; see, also, Colon v. Lisk, 60 Am. St. 609.]
The Attorney-General, however, says: “It must be remembered the Constitution of Missouri is not a grant of power to the General Assembly, but a restriction, and if there is no provision in it that prohibits the General Assembly from providing for the court assessing the punishment, then the General Assembly has the power to do so.”
But- this assertion overlooks the well-settled rule of constitutional construction on this point. An eminent jurist and author says: “Another rule of construction is, that when the Constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other cases. On this ground it has been held by the Supreme Court of Maryland, that where the Constitution defines the qualifications of an officer, it is not, in the power of the Legislature to change or superadd to them, unless the power to do so is expressly or by *212necessary implication conferred by tbe Constitution itself. Other cases recognizing the same principle are referred to in the note. . . . We are not, therefore, to expect to- find in a Constitution provisions which the people, in adopting it, have not regarded as of high importance, and worthy to be embraced in an instrument which, for a time at least, is to control alike the government and the governed, and to' form a standard by which is to be measured the power which can be exercised as well by the delegate as by the sovereign people themselves. If directions are given respecting the times or modes of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only; and we impute to the people a want of due appreciation of the purpose and proper province of such an instrument, when we infer that such directions are given to any other end. Especially when, as has been already said, it is but fair to presume that the people in their Constitution have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, and with a view to leave as little as possible to implication.” [Cooley on Const. Lim. (6 Ed.), pp. 78, 79, 93, 94.]
Touching the same topic, Denio, C. L, says: “But the affirmative prescriptions, and the general arrangements of the Constitution, are far more fruitful of restraints upon the Legislature. Every positive direction contains an implication against anything contrary to it, or which would frustrate or disappoint the purpose of that provision. The frame of the government; the grant of legislative power itself; the organization of the executive authority; the erection of the principal courts of justice, create implied limitations upon the lawmaking authority as strong as though a negative was expressed in each instance.” [People v. Draper, 15 N. Y. 544.]
These authorities distinctly show that the doctrine of “affirmative specification excludes implication,” and that that *213and the similar rule or maxim of “expressio unius” etc., applies alike to constitutions and to statutes; and so this court has held in Bank v. Graham, 147 Mo. loc. cit. 257. To the like effect see Ex parte Joffee, 46 Mo. App. loc. cit. 365, and cas cit.
But it is contended that even if that portion of section 1838 be held invalid, which authorizes the court to assess the punishment, yet that this part may be separated from the rest of the section and the section being thus expurgated, could still stand as a valid enactment. In some instances this may be done. Discussing this point, this court said: “Now nothing is better settled than that a part of a law may be declared constitutionally invalid, and yet another portion properly separable therefrom, and therefore unexceptionable in every particular. This may be so even though the sound and unsound are in one section together. This is always the rule unless the parts sound and unsound are so mutually related, so' blended together, as to constitute an entirety, making it evident that unless the act be carried into effect as a whole, it could not have received the legislative sanction. Bishop, Stat. Crim., sec. 34, and cas. cit.” [State v. Bockstruck, 136 Mo. loc. cit. 353.]
A similar view was expressed in Landis v. Vineland, 54 N. J. L. 75. In that case, an ordinance created an offense and prescribed the penalty for its violation. That portion of the ordinance prescribing the penalty was held to be void, and the question presented to the court was whether the residue of the ordinance declaring what should be an offense was also invalidated. The court said: -“The principle to be applied is, that if a part of a law be void, other essential and connected parts are also void; but, where that part which is bad is independent and not essentially connected with the remainder, the latter will stand. In applying this principle, the question to be decided is, whether it is clear that, if the void part of the enactment be obliterated, the residue will still express that *214which the Legislature intended to become a law and which is enforcible as law. In the present case the mayor and council ordained that certain acts should be-visited with a fine not exceeding $10. Is it clear that they intended that such acts might be visited with a fine of $20 ? Is it clear that, if they had understood that the penalty might amount to $20, they would,have defined the prohibited conduct in the same terms ? I think not. The misconduct and the penalty denounced by them must have been connected in their minds as essential parts of a single law. If the court should substitute the statutory penalty for that fixed in the ordinance, a law would be framed which the legislative power has not expressed its intention to enact.”
Touching this subject, an eminent author and jurist observes : “If they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the Legislature intended them as a whole, and if all could not be carried into effect the Legislature would not pass the residue independently, then if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them.” [Cooley, Const. Lim. (6 Ed.), 211, 212.] :
■ And in a note to the above, the same author very acutely remarks: “It must be obvious, in any case where part of an act is set aside as unconstitutional, that it is unsafe -to indulge in the same extreme presumptions in support of the remainder that are allowable in support of a complete act when some cause of invalidity is suggested to the whole of it. In the latter case, we know the Legislature designed the whole act to have effect, and we should sustain it if possible; in the former, we do not know that the Legislature would have been willing that a part of the act should be sustained if the remainder were held void, and there is generally a presumption more or less strong to the contrary. While, therefore, in the one case *215the act should be sustained unless the invalidity is clear, in the other the whole should fall unless it is manifest the portion not opposed to the Constitution can stand by itself, and that in the legislative intent it was not to be controlled or modified in its construction and effect by the part which was void.”. [Ib. 212.]
An instance of holding the whole act invalid because of the invalidity of a portion of it, occurred in Texas: there, a-statute made the same provision for taxing telegraph messages-sent to points within and to points without the State, and was void as to the latter, it was held wholly void. [Western Union Tel. Co. v. State, 62 Tex. 630.]
In the case at bar it is by no means either clear or probable that the Legislature would have enacted the section in dispute, unless the clause giving the court the right to assess the punishment had been inserted. Including the various degrees, our criminal code of this State defines and punishes over three hundred felonies and in every (me of them (except where the punishment is fixed by law, as in murder in the first degree) it is the duty of the jury to assess the punishment; and the only instance known to our laws where the court has a discretion to assess the punishment is where a violation of section 1838 is prosecuted to a conviction. In every other instance, the punishment is to be assessed by the jury if they agree. [R. S. 1899, sec. 2648.] And if they find a defendant guilty and fail to agree on the punishment, or to declare it in their verdict, or assess a punishment not authorized by law, then, and then only, can the court assess and declare the punishment. [R. S. 1899, sec. 2649.] In other cases, where the jury agree, but bring in a verdict below the limit of legal punishment, there the court must raise the punishment to the lowest legal limit. [R. S. 1899, sec. 2650.] Or if the jury in their-verdict assess a punishment higher than the legal limit, there the court must fix the punishment at .the highest legal limit. [R. S. 1899, sec. 2651].
*216Under section 2652, Revised Statutes 1899, tbe court is authorized to reduce the punishment assessed by the jury. These sections have been on our statute boohs ever since 1835, and perhaps for a longer period, and come down to General Statutes 1865, and are still the law.
These statutes heretofore quoted, constituted the sum total of the right of trial by jury as understood and practiced when 'the Constitution of 1815 was adopted; and they explicitly delimited the respective provinces of court and jury as to assessment of punishment in criminal cases, and such delimitations became, to all intents and purposes, part and parcel of that Constitution upon its adoption.
Considering the fact that of all the felonies punishable under our statutes, the one denounced in section 1838 is the only one wherq, the jury not having failed to agree, the court has to fix the punishment, it seems beyond rational belief that the Legislature, should have so drawn that section, thereby causing it to differ from all our other penal statutes, unless upon the hypothesis of having their intent, aim and purpose concentrated on the sole design of carrying the act into effect as a whole, whereby, the right of trial by jury, as heretofore enjoyed, should be so far modified; that for their discretion should be substituted the discretion of the court; unless, also, as suggested in Landis’ case, supra: “The misconduct and penalty denounced by them must have been connected in their minds as essential parts of a single law.” Considering the litigated section in every possible way both on reason and authority, the section should be held invalid for the reasons heretofore stated, and that such invalidity taking its origin in the clause which confers unwarranted discretion on the court, permeates, with its poison, the whole section and causes it to fall under the ban of the Constitution.
And just here I wish to make a few additional observations: The assertion has been made that: “The change- in the tribunal or agency which shall assess the punishment which *217the law prescribes in no manner deprives the defendant of any of the substantial rights secured by the right of trial by jury as at common law or as enjoyed under the laws of this State prior to 1875.” But this is mere assertion. The one-man power has always been carefully guarded against and restricted both in the civil and criminal statutes, practice and jurisprudence of this State. But we are not here to inquire whether the allowing of a judge to assess the punishment in a criminal case would be just as fair to the defendant as if assessed by a jury. The question is, what has section 28 of the Bill of Eights ordained in this regard ? But even were we to look at the Bill of Eights as contemplated in the assertion just quoted, still the odds would be against the correctness of that assertion.
Speaking of the one-man power and the danger of its unrestricted exercise in determining matters of mere fad by a judge, Judge Cooley, quoting from Blackstone, says: “In settling and adjusting a question of fact, when - intrusted to any single magistrate, partiality and injustice have an ample field to range in; either by boldly asserting that to be proved which is not so, or by more artfully suppressing some circumstances, stretching and warping others, and distinguishing away the remainder [3 Bl. Com., 380].” Upon this Judge Cooley remarks: “These are evils which the jury trial was designed to prevent.” [Cooley’s Const Lim., 392.]
Our legislators and our constitution-framers were doubtless aware of the mentioned danger of the one-man power; and therefore carefully guarded every avenue against its stealthy approaches and its insidious advances.
Again, the assessment of the punishment to be inflicted is part and parcel of the issue joined between the State and the prisoner. If the verdict omits to find a part of the issue, to-wit, the punishment to be assessed, it is as fatal to the validity of the verdict as is the failure to find the accused guilty. *218[Wynn v. State, 1 Blackf. 28, and cas. cit.; 1 Bishop New Crim. Law, sec. 1012.]
So that if in spite of positive statutory law in existence on our statute, books, and practiced daily and adjudicated in our courts for forty years, in regard to the right of trial hy jury, a practice sanctioned by its adoption by the Constitution of 1815, the Legislature can take away from the jury the power to find a part• of the issue, to-wit, the punishment to be assessed, and still that law he constitutional, no reason can be given why a law would not be equally constitutional which should take away from the jury the power to find the other part of the issue, to-wit, the guilt of the accused, and leave that, als0‘, to be determined by the court. This is so, and you can not deny it.
Moreover, to further illustrate the point of the assessment of the punishment being a part of the issue, suppose that the jury in an ordinary ease of felony should, bring in a verdict of guilty, could the prisoner waive the assessment of the punishment hy the jury, and successfully call upon the court to assess the same ? Certainly not. If then the accused could not waive the assessment of the punishment by jury, then, according to Judge Cooley, plainly the Legislature could not take it away. [Swart v. Kimball, supra.]
Having discussed the chief constitutional question involved in this cause, it is proper to take up for examination that feature of the cause which constitutes the main ground on which defendant’s appeal is bottomed, to-wit, the entire insufficiency of the evidence to support the verdict.
The prosecutrix, as will presently more fully and at large appear, testified to a clear case of rape. Defendant upon this, and at the close of the testimony, asked this instruction: “If you believe from the evidence that the defendant had sexual intercourse with the prosecuting witness, Jessie Champagne, but that such intercourse was against the will and consent of said Jessie Champagne, and was had by means of force and violence used by said defendant, and that said Jessie Cham*219pagne resisted having such intercourse, then you will acquit the defendant.” •
Comparing section 1837, supra, with its associate section (1838), we find that they respectively define totally distinct and independent crimes; the first, a crime of force, violence, or intimidation or a combination of all these three; the second, the ordinary instance and illustration of the “Irrepressible Conflict” where mutual desire seeks and finds its outlet and gratification. But this, the law, where the parties are of a certain age, tabooes. There is neither likeness nor similitude between the crimes described in the two sections; neither as to their ingredients nor their punishments. The highest punishment of the first is death; its lowest, imprisonment for five years; while the highest punishment which can be inflicted under the second is imprisonment for two years; the lowest, one month’s imprisonment and a fine of $100.
These considerations clearly show that the crime designated in 1838 is not one of the lower degrees of the crime described in 1837. If it could be thus justly regarded, it would be only upon the theory that 1838 applies to all cases of carnal knowledge by a man over sixteen with a chaste unmarried female between the ages of fourteen and eighteen years, whether with the consent of such female, or forcibly and against her will; and that such man, though proven guilty of rapecould be convicted of mere carnal knowledge. And if the offense described in 1838 could be regarded as one of lesser degree than that described in 1837, then it would follow that a man could be indicted under that section, and on proof of mere carnal knowledge, convicted under 1838. Nay, more, counts for rape and for carnal knowledge could be united in the same indictment, and a conviction occur as the evidence might turn out to be; while our statute only allows such counts to be united “when, by law, an offense comprises different degrees,” and there, the “indictment may contain counts for the different degrees of the same offense.” [R. S. 1899, sec. 2524.]
*220Furthermore, if mere carnal knowledge as designated in 1838, is one of the degrees of the crime of rape; if that word is a mere generic term for all sexual offenses, then a far more comprehensive and far-reaching result would follow than that already announced; because, then, an indictment could contain counts for rape, for carnal knowledge, for defiling a girl under one’s protection by carnally knowing her (R. S. 1899, sec. 1815); for seduction (R. S. 1899, sec. 1844) ; and for incest (R. S. 1899, sec. 2172).
But such a theory would require great temerity to attempt to maintain it. Especially so, as this court has expressly decided that where rape is proven, incest ceases. [State v. Moses Ellis, 74 Mo. loc. cit. 386, and cas. cit.] Especially so, as this court has three times decided, in State v. Woolaver, 77 Mo. 103; State v. Strattman, 100 Mo. 540; State v. Lingle, 128 Mo. 528, that under section 1815, if force be used, there can be no conviction of the offense therein mentioned.
Now, if proof of force defeats the indictment under section 1815, and defeats it under section 2172, why does it not logically do so under section 1838 % This question suggests the only reasonable answer that can be returned, and that is, that it does.
Again, we have statutes declaring in effect that a party can not complain, and is not entitled to a reversal because not convicted of a higher offense than that with which he is charged, or where he is found guilty of an offense necessarily included in that charged against him. [State v. Gates, 130 Mo. loc. cit. 357, and cas. cit., and stats. cit.] Now, evidently, this court did not consider in Ellis’s case, supra, that the crime of incest was necessarily included in the crime of rape, nor that the latter was a higher degree of the same .offense, because, had it done so, it must, as of course, have affirmed the judgment of conviction, and the same remark applies to the Woolaver, Strattman and Lingle cases, above cited, where this court would evidently have reversed the *221judgment of conviction had the crime of rape been proven. Tested by these considerations, and tried under these rules, it is difficult to see how a like conclusion can fail of being reached in the case before us. If consent prevents rape and convicts of incest, or if rape predominates and prevents conviction of incest, or if rape intervening, where a guardian defiles his ward by carnally knowing her, prevents conviction under section 1845, how can it with any show of reason be said that having carnal knowledge under section 1838, by means and through instrumentality of rape, authorizes a conviction under that section? Blow can carnal knowledge be obtained without consent, defeat prosecution in the two classes of cases before mentioned, and yet fail to do so under the provisions of 1838 ? The theory of the State on this point, reduced to its last analysis, renders it possible for the grand jury or the prosecuting attorney to elect under which section, 1837 or 1838, the accused shall be prosecuted for the very same act. If the case is pretty strong against him, indict him under section 1837; if the case be regarded weak, indict under section 1838, and then all you have to prove is the carnal knowledge; and if in doing so you prove a clear case of rape, this amounts to no defense. Men who are tried for crime must not be too nice as to the number of the section under which they are indicted. What does it concern them whether the last figure of the number of the section is a 7 or an 8 ? Further under this head: If the theory of the State be correct, and if it be true that the. offense mentioned in 1838 is not one of the degrees of the offense mentioned in 1837, then the State has the option, for the same act, to indict under either section, and if defeated on. the first one, may indict under the second, and vice versa, and a judgment of acquittal would be no bar, to a second prosecution under the other section. And just here this additional thought occurs, and presents itself in the form of this query: If the accused must be apprised, by the indictment, of “the nature and cause *222of the accusation” (sec. 22, art. 2, Const.), how is this right preserved, where he is indicted for one thing, proven guilty of another, and still convicted under the groundless and unproven charge ?
These remarks bring into view State v. Knock, M2 Mo. 515, on which the State relies. I am abundantly satisfied, since pursuing the above train of thought in the light of the authorities and statutes cited, that that case on the point of force being immaterial under section 1838, was erroneously decided, and should no longer be followed. But the .error on that point was harmless, since no force was there in evidence, and so the remark was of the ober variety, but which sometimes is as damaging as a direct out-and-out ruling. The instruction above mentioned should therefore have been given.
We come now to the predominant reason which induced this appeal, to-wit, the utter insufficiency of the evidence to warrant a conviction. The testimony of the prosecutrix, on which alone this prosecution rests, is, in its substance and practical totality, the following:
The story of the occurrence, as told by Jessie Champagne, the prosecutrix, is this: At the time of the assault, June 7, 1899, she had passed sixteen years of age. While she was yet an infant her mother died, and she was reared by Mrs. Mary Irwin (the mother-in-law of the defendant) with whom she lived from the time she was three years of age, in a two-room «ottage on the farm of Sylvester Hamey, the defendant’s father, near Lake Contrary, in Buchanan county. In another house, situated in the same yard, on the same farm, and only thirty yards distant from where Mrs. Irwin and the prosecutrix lived, the defendant with his wife and three children, the oldest eleven and the youngest three years of age, the defendant’s father, and the prosecutrix’s father, resided and were actually present in that other house at the time of the supposed outrage. The defendant was thirty-six years old, and had lived on this farm all his life. The prosecutrix had known *223him intimately since she was a child. One evening in June, 1899, after supper, Mrs. Irwin went over to the defendant’s house to help Mrs. Harney wash her dishes. It was about 8:30 o’clock, dusk and getting dark. The prosecutrix was alone in the house. She stood in the front room combing her hair. Some one entered, “grabbed her around the waist,” and kissed her. She jerked herself free, and turning, recognized the defendant. She ran towards the door, but before she could escape, he caught her again, and dragged her to a bed in the room. He threw her upon the bed and forced a pillow over her mouth. She struggled in vain to free herself. She tried to halloo but, for the pillow, she could not. Presumably, holding the pillow with one hand, and controlling her hands with his other hand, in some manner, not clearly explained by the witness, he raised up her clothes, and while she resisted with all her power, he ravished her. When he “let her up,” the defendant said: “My God, Jess, don’t tell my wife,” and went over to his own house. The prosecutrix testified that she was a pure, innocent girl, that she had never had intercourse with any man, nor did any man ever attempt to have intercourse with her; and yet she admits that at the time she was raped, the doors ü> her home, and to the defendant’s home, were open; that at the time her foster mother, her father, the defendant’s father and his wife, were in the house in the same yard, not ninety feet away, and though it nowhere appears that “she was under restraint or the influence of threats, or that she apprehended any violence from the accused,” she did not, after the pillow was removed from her mouth, and the defendant had departed in peace, halloo or make any outcry, or exhibit the anguish that might with all propriety, have been expected from one so pure and innocent; but on the contrary, she testified that when defendant left, she went out on the front porch and sat down to cool off. She says she waited there for her foster mother to return, and that “I kept intending to tell her but I didn’t;” and the prose*224cutrix admits that she made no complaint to her, nor to her father, nor to the defendant’s wife, nor to any other person,, then or at any other time, giving no excuse for her failure to tell her mother, giving as her only excuse for her failure to tell her father, who was only thirty yards away, that she did, think she would, but she was ashamed to; and giving as the excuse for failure to complain to the defendant’s wife, “Well,, I don’t know, did not think she would believe it anyhow.”
She further testified that she never told her foster mother as to, what had occurred; never told a soul until after the child was born; and then she told her foster mother. And she never told her until the latter ashed her: “Jessie who was the cause of this?” And Jessie said, “John Hamey.” This answer was given in response to the State’s question; “Who was the cause?” over defendant’s objection and exception on the ground that the answer would be hearsay. After the alleged rape, and down, at least, to the cornfield incident, three months after the child was born, the same bearing, attitude and friendly actions which had existed and were customary between defendant and Jessie, before the episode of the bed and the pillow in her room on the night in June, continued to exist without a break in their uniformity.
The wife of the defendant testified, corroborating Mrs. Irwin, the State’s witness, that during all the time that elapsed from the alleged assault until defendant’s arrest, she and the defendant and her father-in-law and Mrs. Irwin and the prosecutrix visited each other, and that she never saw any change whatever in the conduct, relations or feelings that had existed between the prosecutrix and the defendant before the crime.
Defendant’s family, consisting of a wife and three children from three to eleven years old, with defendant’s aged father, his mother-in-law, the prosecutrix, whom defendant had known all her life, and her father, all continued to live in the same yard together, with no discontinuance whatever in *225their former amicable relations, they all, including Jessie, continued to visit each other as before, and were in fact as one large family. Meanwhile, with all these friendly reía-, tions still in statu quo ante, and after the requisite time had elapsed, when signs of motherhood began to be largely and more largely developed, Mrs. Irwin, the foster mother, remarked to Jessie: “It looks funny that you are sick all the time,” and she replied: “Oh, ma, you always say something.” This conversation occurred along late in the fall, after the affair in June.
It furthermore appeared from the testimony of the prosecutrix that, although she and the defendant continued to live within ninety feet of each other, she never spoke to him nor( he to her about the connection which had-taken place between them, until about three months after the child was born. Then, one day, about a year after the incident, the defendant and her father were plowing in the field and prosecutrix went to defendant there, and asked him to support her child. The two were alone.
Eesponding to this request defendant denied its being his child; that he had nothing to do with it, and wouldn’t support it; and further said: “Oh, no,* Jessie, you can’t come that.” Thereupon the defendant asked Jessie whether she had ■ told her father1 about the matter, and when she replied that she had not, defendant suggested that they go and tell him. They went together. The defendant told the father that the prosecutrix had said that he was the father of the child, but that he had nothing to do with it. Me refused to. pay any money, and then she had him arrested. The witness did not testify, nor is there any evidence in the case, that as a result of the outrage committed upon her, she was lacerated, or that she bled, or that her person was scratched, or showed any marks of violence, or that any of her clothing was disordered or torn, or that she cried or gave any signs *226of the physical condition and mental agitation, which by all the immutable laws of nature must follow upon a rape of a resisting virgin, and such as would naturally be expected from a woman so foully wronged. This is the State’s entire story. No other witness was introduced to prove, by fact or circumstance, the guilt of the defendant.
In addition to that the prosecutrix was contradicted by defendant (who established an excellent reputation) as to what had occurred in her room in June, 1899, and contradicted by Mrs. Irwin and defendant’s wife in many important matters aside from her testimony as to the June occurrence, and contradicted by other witnesses as to the other important statements of hers. It will have been observed that the prosecutrix had never, by word, sign or syllable, indicated to a single human being that she had been ravished. She never even said so when she went to defendant in the cornfield; she only asked him to support her child. Now if defendant had really ravished her, it would have been the most natural thing in the world for her to have indignantly gone to him, and charged that he had forcibly despoiled her of her virtue; pillaged her of her chastity, and accomplished her ruin. Instead of that, however, she says nothing of outrage committed and chastity lost; at that time, she appears to have been unaware of either loss of virtue or of honor outraged. Her only concern was of a financial nature; to receive funds to support the child and when defendant denied its paternity, and refused its support, she had him arrested. And not until she went on the witness’ stand in court, did she declare she had been ravished. And in this case, at no time does prosecutrix even so much as intimate that she was threatened by defendant, if she told what had occurred, or that-she was in any way intimidated by him.
It is believed that no instance can be found in the books • where a prosecutrix has been allowed to testify against an accused party, charging him with rape upon her, after so long *227and unexplained, a delay has occurred, with every opportunity to make complaint, and without a single excuse to urge or offer for the delay, nor why complaint was not made at an earlier period; and without a single circumstance of fear, threat or intimidation to prevent a prompt and full disclosure. More than that, the prosecutrix stands without a particle of corroboration, either as to immediate complaint made'; the torn and disordered condition of her hair or clothing; scratches or bruises on her person; or that she was in tears or great mental distress; or even that the ravisher fled for it.' And on top of that she is contradicted by Mrs. Irwin, her foster mother, as to whether, prior to the assault, she “kept company” with other young men; Mrs. Irwin affirming; prosecutrix denying. In this she was contradicted also by John McComb and Ernest Bally, who testified on behalf of defendant, that they did “keep company with her,” and had had sexual intercourse with her prior to the time of the alleged assault by the defendant. And these two witnesses are corroborated by Mrs. Irwin, who also testifies that the prosecutrix did “keep company” with McComb, and that Bally was her frequent companion and sweetheart. In another important matter the prosecutrix was impeached. She testified that prior to the alleged assault the defendant “would never keep his hands to himself;” that he would pinch her and feel of her bosom, and attempt to kiss her in the presence of his wife, and when she would remonstrate with him, his wife would say: “Oh, you are too touchy.” In this she was contradicted not only by defendant but also by defendant’s wife.
The defendant, in order to establish that prosecutrix was not a female of “previous chaste character,” introduced three witnesses, Charles Dodd, John McComb and Ernest Bally, who testified that they had had sexual intercourse with the prosecutrix before June I, 1899. Each of them gave time, place and circumstances under which the prosecutrix had submitted to their desires. All three of them had resided near *228Lake Contrary for a number of years. At the trial there was present a large number of representative citizens who had lived in the same vicinity for years — witnesses as to the reputation of the defendant — who must have known Dodd, McComb and Bally, yet no. attempt was made by the State to attack the character or impeach the testimony of any of them; and their testimony is not contradicted except by the prosecutrix herself, who contented herself with the mere statement that she had never had sexual intercourse with any of them.
It is thought proper to give here some instances where the courts have held the evidence wholly wanting in the elements which go to make up the crime of rape. Thus in Topolanck v. State, 40 Tex. 160, the court said: “It would seem that the defendant was convicted alone on the testimony of the female alleged to have been injured, unsupported by other evidence, and not corroborated by circumstances. She says she told no one of what the defendant had done for several weeks, leaving it to be inferred that she had given information to some one after that time, but what it was is not disclosed. Whatever the disclosure may have been, or whoever may have been the party, that party is not named in her testimony, and not called as a witness to corroborate her statement, It was several weeks after the ofíense is said to have been committed, and long after she had opportunity to complain. No complaint is made until March 1, 1813, more than three months after the wrong is said to have been done, and about three months and a half before her child was born. Her long silence is perhaps intended to be explained when she says the defendant threatened her life and the life of her father if she told any one of what he had done. But it does not appear that she had any good reason for fear.on account of such threats, if made. She was twenty-one years old, resided with her father and was under his protection. Though she was legally competent as a witness, these circumstances diminish the credit to be given to her testimony, and leave *229the question of the defendant’s guilt in so much doubt that the jury were not authorized to render any other verdict than that of not guilty. And though the court can not express any opinion as to the weight of the evidence, nor sum up the testimony on the trial before the jury, as they are the exclusive judges of the facts, yet, on a motion for a new trial, it is the duty of the court to set the verdict aside when it is contrary to the law and the evidence. [2 Whart. Crim. Law, 1149; 3 Greenl. Ev., 212; Pasch. Dig., arts. 3059, 3137, cause 9.]”
Commenting on the above case, Henderson, L, among other things, said: “In this case, however, instead of only three months elapsing between the alleged offense and the complaint made by the prosecutrix, more than seven months had elapsed, and only when her condition exposed her did she state anything in regard to the matter. This long silence and the circumstances under which she made The accusation should go very far to discredit her, and to suggest that the act of carnal intercourse, if it was with the defendant at all, was with her consent. The excuse she gives, that she feared the appellant would kill her father, under the circumstances of this case, must appear very flimsy, indeed. ' The appellant was shown not to live in the family, and not to have authority or control over her; and this statement of hers, as a reason for her long silence, does not comport with the integrity of a virtuous female, who has been outraged, and who is jealous of her honor. If we look to the circumstances of the outrage itself as narrated by her, they likewise appear shadowy. There was no attempt at flight, though she was on horseback. No evidence of any injury or struggle. She appears to have unresistingly submitted to being lifted from her horse, and, after the outrage was accomplished, to be lifted back again, by the destroyer of her innocence, to have accepted his escort to her home, and to have gone with him on two sleighrides a few days afterwards; and all this with*230out any suggestion that he had demeaned himself towards her in any other wise than in a manner which met her approval. Under all of the facts of this case, 'it occurs to us that the lower court should have unhesitatingly granted a new trial in this cause. Although a stricter rule prevails here with reference to a new trial than in the lower court, yet, from the record in this case, we can not permit this verdict to stand. Under the laws of this State, rape means ‘the carnal knowledge of a woman, without her consent, obtained by force, and such force as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the case.’ And the proof of this must be made to appear beyond any reasonable doubt,” citing cases. [Price v. State, 36 Tex. Cr. Rep. 143.]
In State v. Chapman, 88 Iowa 254, the indictment was for rape; verdict for assault with intent to commit rape. The prosecutrix was nineteen years of age, had known defendant for three years, and was going with him,- on foot, to her home, about six miles distant. They .were seen by two witnesses walking down the railroad track together. She testified that he proposed they go across the fields to make the route shorter. She hesitated, and finally consented. While crossing the fields, he made improper proposals to her. She walked away and left him. He called her back to talk further, and she came. He renewed his proposals. She refused. They bantered. He threw her down, and against her wishes had improper relations with her. She endeavored to free herself and escape. The court says: “Her failure afterwardsi to make known the occurrence until her delicate situation made it necessary to tell her mother . . . and her entire conduct before and after the affair, presents a state of facts so inconsistent with her forcible defilement, that we think the verdict without sufficient support.”
In State v. Connelly, 57 Minn. 482, the defendant was *231convicted of the crime of rape upon a girl of the age of seventeen years. The defendant was a priest, and resided in an adjoining house. She testified that while she was on the porch of her own house the defendant called her over to give her some pictures to put in her prayerbook; that he took her upstairs into his bedroom ; that he gave her some whisky, in which he put some stuff out of a little bottle; that she drank it, got weak, and began falling over a. little; that he picked her up, and put her on the bed, and ravished her; that she resisted all she could, and hurrahed; that he accomplished his purpose by force; that he threatened to- kill her if she told, and took his revolver from the bureau, and pointed it at her at the time. This was March 9th. She told no one until May 25th following. The court says: “But the more vital question is whether the evidence was sufficient to warrant a conviction. There is no rule of law which forbids a jury to convict of rape on the uncorroborated evidence of the prosecutrix, provided they are satisfied beyond a reasonable doubt of the truth of her testimony. The courts have always recognized the danger of convicting on her uncorroborated evidence. Where the testimony of the prosecutrix is uncorroborated, and bears some intrinsic evidence of improbability, courts have sometimes refused even to submit it to the jury.”
In Territory v. Webb, 2 N. M. 147-157, it was ruled that “under the rules governing the judicial administration of the criminal laws of this Territory, this court can only review and determine errors of law appearing upon the face of the record. It is quite beyond the scope of its duties to determine the credibility of witnesses testifying in the lower court, the weight of their testimony aside from the law of the evidence, or the reconciliation of conflicting testimony.” But they have also held in the same case and in the same connection, that “cases, however, might arise wherein, though there might be some evidence to sustain every material allegation of the indictment, yet at the same time the evidence *232might be so very slight as to justify an appellate court in reversing a judgment thereon.” In Owens v. State, 35 Tex. 361, the court says: “Cases not infrequently come to this court where a new trial has been refused, when the weight of evidence is clearly against the verdict, or is so weak as to leave every correct and sound mind in doubt of the guilt of the accused. In all such cases the district court should grant a new trial, and unless this is done, this court will be compelled to relax its rules, and reverse every judgment which we find rendered on lame and unsupported verdicts.”
In Mares v. Territory (N. M.), 65 Pac. Rep. 165, it was held that the disclosure of the assault made four months after its occurrence, was of no value whatever as' a corroborating circumstance, and the court, speaking through McMillan, J., said: “There is not, in the whole case, any corroborating evidence, nor a single corroborating circumstance, and the probability of the commission of the alleged offense is so far outside of the domain of reason that there was absolutely nothing for the consideration of the jury except the bare improbable statement of the prosecutrix. It is not probable that an employee in a butcher shop, located on a busy thoroughfare, and having large windows, uncurtained, giving a full view of the shop, from the sidewalk, would, in the daytime, and at an hour of the day when people are accustomed to come to the shop to trade, assault and ravish a customer. It is not probable that a female twenty-two years of age, in such a place, while being pushed fifteen to eighteen feet towards an adjoining room, by a man about to ravish her, would not make an outcry, and resist, if she desired to protect her virtue. It is not probable that a woman of the mature age of the prosecutrix, who was with her mistress in the daytime and her mother at night, would allow such an assault to. go uncomplained of to one or the other until she was ill from miscarriage, four months after the alleged occurrence, if she were an innocent victim. It is not probable that a female *233having a miscarriage, and charged by her mother with wrongdoing, would not lay the offense at the door of another to shield herself. It is unnecessary to notice any of the errors assigned against the verdict of conviction except the twenty-first, to-wit ‘The verdict is against the law,’ and the twenty-second, to-wit, ‘The verdict is agajnst the evidence,’ it appearing from the record that there is not sufficient evidence to justify the conviction. The complaint made to her mother by the prosecutrix four months after the alleged assault, and wrung from.her at a time when she was ill from miscarriage, has no value whatever as a corroborating circumstance. ‘A disclosure in the case of rape has no value whatever unless it is the natural result of the horror and sense of wrong which would prompt any virtuous female to make an outcry at the first suitable opportunity.’ [People v. O’Sullivan, 104 N. Y. 481.] In 1 Hale, P. C. 632, it is said: ‘Complainant must make fresh discovery and pursuit of the offender; otherwise, it carries a presumption that her suit is but malicious and feigned.’ In 1 East P. C. 445, it is said that the evidence of the complainant ‘is confirmed if she presently discovered the offense and made pursuit of the offender, and that her evidence is discredited if she concealed the injury for any considerable time after she had opportunity to complain.’ ” And the judgment in that case was reversed. See also, Monroe v. State, 13 So. Rep. 884. In that case the headnote is as follows: On a trial for rape of an eleven-year-old girl, the evidence relied on to convict was the testimony of the girl herself. The alleged crime occurred at noon, at a farmhouse, and no complaint was made to the neighbors; and there was a horn at hand, generally blown as a signal of an unusual occurrence, but not blown on the occasion of the alleged crime. There was no sign of struggle, and no suggestion of any choking or blows to disable, and no tearing of the girl’s, clothes. She stayed at home till night, and then told her brother of the alleged rape, who said he was going “to tell ma,” and she *234then, went to meet her mother, and told her. Held insufficient to sustain a conviction. There, Campbell, C. J., said: “No error was committed by the court in the trial of the case, but in our opinion the verdict should not be permitted to stand. It is true that conviction of this detestable crime may be had on the uncorroborated testimony of the person raped, but it should always be scrutinized with caution; and, where there is much in the facts and circumstances in evidence to-discredit her testimony, it is not sufficient to sustain a verdict of guilty. [1 Hale P. C. 635, et seq.; Innis v. State, 42 Ga. 473; People v. Hulse, 3 Hill 309; 19 Amer. and Eng. Ency. Law, p. 958.] The observations of the court in People v. Hulse, 3 Hill 309, are just and appropriate, and commend themselves to our judgment. There is much in the testimony of the girl charged to have been raped by the accused to throw doubt on her testimony. There is not a single corroborating circumstance to support her statement, and much to suggest its falsity. . . .No sign of any struggle was shown. There was no suggestion of any choking or blows to disable, or bruising the arms or wrists, or tearing the clothes of the girl, or the bedclothes, or any circumstance, even the most trivial, to-support her testimony. The rape occurred at 12 o’clock noon, and, although it was on a plantation, she made no complaint to any neighbor. Although there was a horn at hand, the blowing of which was a signal of something unusual having occurred at the house, it was not blown for this unusual occurrence. The girl waited at home until about night, when, having told her little brother, she says, who said he was going ‘to tell ma,’ she went to meet her mother, and told her. The strong probability is that the account of the affair given by accused is correct, and that the girl consented, and having been detected by the little brother, or from some other cause, she determined to tell. We regard her testimony as incredible.” [See also, Huber v. State, 126 Ind. 185; State v. *235Wilson, 91 Mo. 410; State v. Patrick, 107 Mo. 147, and cas. cit.]
Acting in the light of these authorities and, indeed, of the experience of common life and of the ordinary instincts and promptings of human nature, we hold that á verdict based on such evidence as above offered by the State, should not be permitted to stand; that evidence is contrary to all rational belief and all prior observations of human action in like circumstances.
But even if rape were proven in the present instance, as that is not the crime charged in the indictment, for that very reason no verdict under section 1838 should he permitted to stand. Summarizing the foregoing rulings we hold, first, section 1838 unconstitutional; second, that a man indicted and tried under section 1838, proved guilty under section 1837, can not be convicted under section 1838, unless his right under section 22 of the Bill of Rights to he notified by the indictment of “the nature and cause of the accusation” against him, is wholly disregarded; thirds that no man should be convicted of rape on such improbable, discredited and unreasonable evidence as that offered by prosecutrix.
Eor these reasons the judgment should be reversed and defendant discharged. [Sec. 2718, R. S. 1899.]
The foregoing which, with some few things added, was the opinion of Division Two, Burgess, J., concurring therein, Gantt, J., dissenting, has ceased to be the opinion of the court, and because of this I herewith file the original as my dissenting opinion, in which Marshall, J., concurs.