dissenting.
In my opinion, several fundamental principles of law have to be ignored in this case to agree with the majority opinion. The indictment charged that the accused "did have carnal knowledge of [the victim] a female, forcibly *108and against her will..The defendant pleaded not guilty to this indictment and the case went to trial. The defense was that the intercourse was consensual rather than forcible. The state requested the trial judge to charge the jury in effect that the law supplies the essential element of force when the female is under age 14. There was evidence that this female was under age 14 and the jury convicted the defendant by a general verdict of guilty.
The majority opinion affirms the conviction and holds the charge was not error. In my judgment, this conclusion is incorrect. The indictment alleges no fact whatsoever pertaining to the age of the victim. Such a fact is essential to an indictment for statutory rape since consensual intercourse with a female who is not under age 14 is not rape. Code Ann. § 26-2018. "It is an elementary principle ... that no person can be convicted of an offense not charged in the indictment. There may, of course, be a conviction of a lesser offense than that expressly named in the indictment, where the former is necessarily included in the latter, and also in some cases in which the lesser is not so included in the greater offense but where the language used in the indictment is sufficient to embrace the smaller offense.” Goldin v. State, 104 Ga. 549, 550 (30 SE 749). See also, Gearin v. State, 127 Ga. App. 811 (195 SE2d 211). However, under the circumstances of this case, I do not see how statutory rape can be considered a lesser included offense of forcible rape.
The age of a female is not essential to an indictment for forcible rape because force, not age, is the critical factor. The age of a female is essential to an indictment for statutory rape because age is the critical factor in that crime. We might have a different question if the present indictment for forcible rape alleged that the female was under age 14. But it does not. It makes no mention of age. The only way I can understand the rationale of the majority opinion is by applying the rule in civil cases that the evidence amended the pleadings. I have never heard of it being done in a criminal case because constitutional due process will not permit it. "Conviction upon a charge not made would be sheer denial of due process.” De Jonge v. Oregon, 299 U. S. 353, 362. Due process requires that the accused shall be informed as to charges against him so *109that he may be enabled to present his defense. Berger v. United States, 295 U. S. 78, 82.
In this case, appellant was charged only with forcible rape under Code Ann. § 26-2001. Consequently, the crime of statutory rape was not an issue in the case and it was error for the trial judge to instruct the jury in effect that if the evidence showed the female was under age 14, this was equivalent to proof that force was used to accomplish the intercourse. This charge removed the element of force in a forcible rape case and allowed a conviction of a crime requiring force without any proof of force. The jury returned a verdict of guilty but did not specify whether it was for forcible rape or statutory rape. In either event, I believe it was unauthorized because the jury was not required to find force to convict for forcible rape and the indictment did not charge statutory rape. The majority opinion approves a commingling of the elements and evidence required for these two separate offenses to affirm the conviction but I cannot do so. Under the rationale of the majority, an accused can be charged with forcible rape, convicted of that offense by proof only of statutory rape and receive life imprisonment or death as punishment, neither of which is authorized under the law for statutory rape. Such a result is constitutionally impermissible in my opinion.
I am authorized to state that Justice Gunter joins in this dissent.