
    Hiltabiddle v. The State.
    1. The section in the code of criminal procedure (74 Ohio L. 349, 2 31), dispensing with proof of emissio seminis, has no relation to capacity; and’ hence, it does not so enlarge the meaning of the statutory provision in relation to rape (74 Ohio L. 2 9), as to include persons not theretofore-amenable to that provision.
    2. If it appear, on the trial of one charged with rape, that he is a boy under- " fourteen years of age, the burden is on the state to prove capacity to-commit the crime; and if the court enumerate certain facts which are • of no determinate value, and say to the jury that if they are proved the burden is on the accused to show want of capacity, it is error.
    Error to the Court of Common Pleas of Ricbland county.
    In an indictment in the Court of Common Pleas of Rich-land county, it was charged that John Hiltabiddle, on July 4, 1878, at the county of Richland, assaulted the prosecutrix, and committed a rape upon her.
    On the trial at the March term, 1879, it was proved that at the time stated in the indictment, the prosecutrix was eight years and four months, and the plaintiff in error thirteen years and nine months of age.
    The assault and penetration, rupturing the hymen, were proved.
    The verdict ivas guilty; a motion for a new trial was overruled; and it was ordered that the defendant be taken to the reform farm of Ohio, “ and there to be kept until he arrives at full age, unless sooner reformed.”
    A bill of exceptions, setting forth the evidence and the charge given and refused, was made part of the record.
    The mother of the prosecutrix testified that she examined the child’s clothing, very soon after the outrage was committed, and that there “ was a stain on the back and front part of her panties — on the seat and partly in the front— right where the panties come up to her privates. It was yellowish and mixed with blood.”
    
      Dr. Craig (28 years in practice) testified that “ a boy of •defendant’s age might have an emission, but that it might not be seminal fluid. Whether it would be seminal fluid ■or mucous could only be told by the microscope.”
    Dr. Patterson (22 years in practice) testified : “ Puberty ordinarily arrives at fourteen. They have sexual desire before this. Maybe an emission when there is the absence •of spermatozoa.”
    Dr. Irvin (18 years in practice) examined the plaintiff in error during the trial, and testified : “ I made an examination of his sexual organs, and found his organs those of an infant. Do n’t think he can emit semen now. Do n’t think hie could on the fourth of last July. Do n’t think it was possible for him to have emitted semen on the fourth of last July. He has no hair under his arms. He is not above, but rather under the common run of boys at his age. Boys in this climate, in this part of Ohio, rarely reach puberty until they are between fourteen and fifteen years of .age. Not frequent that boys reach puberty in this part of •Ohio before they are fifteen years of age.”
    The plaintiff in error testified that he never had an emission of any sort.
    This is all the evidence to the point in controversy.
    The court charged the jury, among other things, as follows : “ To constitute carnal knowledge, there must be both penetration and emission. Both of these elements are necessary in the crime of rape. I am requested to instruct you, that if you find from the evidence, that the defendant was under the age of fourteen years at the time of the alleged rape, it is a presumption of law that he is incapable of committing the crime. This is true, and this presumption arises from human experience, and the result ascertained, that an infant under that age is ordinarily incapable of committing this crime; that the sexual organs of the male are ordinarily not sufficiently developed at that age to accomplish penetration and emission of seminal fluid. But "this presumption becomes weaker and weaker as the male approaches the age of fourteen years, and as soon as he arrives at that age, the presumption changes, and the probability and the presumption then is, that such male is capable of' committing the crime, and has arrived at the condition of puberty. ... I say to you, as matter of law, that if' you find the defendant, incited by sexual desire thereto, had sexual connection with the prosecuting witness, forcibly and against her will; that at the time he was of the age of' fourteen years, less three months and two days only ; that the sexual organs of the defendant were then so developed that in and by such sexual intercourse, he accomplished the rupture of the hymen of the prosecuting witness by penetration; and that there was then and there sexual emission on his part — at or about the time stated in the indictment — this is sufficient to constitute the offense, and in that case you should find the defendant guilty, unless the-defense satisfies you that the fluid there emitted was not germinal and did not contain seed.”
    Exception was taken to the charge at the time, and the-plaintiff in error relies for grounds of reversal on the error-in the charge.
    
      S. E. Pink and D. Eirlam, for plaintiff in error.
    
      Isaiah Pillars, attorney-general, and John G. Burns, prosecuting attorney, for the state.
   Okey, J.

Sir Matthew Hale truly observes, that “ rapéis a most detestable crime.” Where the injured party is a child, the outrage is most revolting. The mind is led, unconsciously, to the consideration of what the punishment ought to be, rather than to the inquiry which it is our duty to make. But our duty is simply to ascertain whether the plaintiff in error has been legally convicted of the felony of rape. Until 1815, that crime was punishable in this-state with death ; and, although the penalty is at present-less than death, we must observe the same rules as formerly in ascertaining whether the crime has been committed.

Whatever doubt existed on the question, it was settled’ in Blackburn v. The State, 22 Ohio St. 102, that emissio sem~ inis is an essential ingredient in the crime of rape. In consequence of that decision, the legislature, in 1874, passed a statute on the subject. 71 Ohio L. 14. In 1877, that act was incorporated into the code of criminal procedure, in the following form : “ Carnal knowledge or sexual intercourse shall be deemed complete upon proof of penetration only.” 74 Ohio L. 349, § 31.

Similar provision had been made in England more than half a century previous to that time (9 G. 4, chap. 31; 24 and 25 Viet. chap. 100), and the same thing had been done in New York, Michigan, Iowa, Arkansas, and doubtless in other states. These statutes, it had been perfectly well settled, did not increase the class of persons who might be convicted of rape, but simply made penetration conclusive evidence of emission. R. v. Groombridge, 7 C. & P. 582 ; R. v. Philips, 8 C. & P. 736; R. v. Jordan, R. v. Brimilow, 9 C. & P. 118, 366 ; R. v. Read, 1 Den. 377; 3 Greenleaf’s-Ev. §§ 210, 215. Moreover, the provision should be strictly construed in favor of one accused of crime, and hence, the fair construction is, that it does not enlarge the meaning of the statute defining the crime of rape (74 Ohio L. 245, § 9), so as to extend it to one having no capacity to emit semen.

In England, a boy under fourteen years of age can not, in contemplation of law, be guilty of the crime of rape, or of an assault with intent to commit it. It may not be entirely clear why the presumption in a case of this character —unlike that which pertains to crimes, in general, committed by persons under that age — should be conclusive ; hut such is the fact. In Williams v. The State, 14 Ohio, 222, it was held the presumption exists here, but that it may be rebutted. The ground of the decision is, that by reason of difference in climate, and other causes, puberty is arrived at earlier, here than in England. “ In our state,” said Read, J., “we know that many infants under fourteen are capable of being guilty, but that a majority are not capable under that age.” Undoubtedly the common law is only in force in this state so far as its principles are adapted to our condition; and it is also true, that the age at which puberty is reached is dependent not only on race and the habits of the people, but also on climate. In England, as well as in Ohio, males, in many eases, arrive at puberty before they attain the age of fourteen years, as will appear from the cases already cited. If a range of mountains occupied the place of our great northern lakes and their connecting rivers, we might have the semi-tropical climate of the same latitude in Spain, Portugal, and Italy, in which puberty is attained by boys, in neatly all cases, before they arrive at the age of fourteen years; but our climate is very different; and, in my opinion, there is no appreciable difference in the age at which a boy in Ohio and one in the higher latitude of England undergoes the change in question. Still, the rule that the presumption of incapacity may be rebutted, as determined in Williams’ case, has stood as the law of this state for many years, and we are not willing to disturb'it. But here we are asked, not only to adhere to Williams v. The State, but to go a step further, and, on evidence of the most unsatisfactory' character, east on the accused the burden of proof of his incapacity. The answer to this claim is found in the principle asserted in Williams v. Roberts, 5 Ohio, 35-44, where it was said that, while the court may feel bound by the authority of a former decision, it may be unwilling to extend it. And see 14 Ohio, 236 ; 11 Ohio St. 289.

The rule laid down in Williams v. The State has not been generally followed elsewhere, but it was substantially approved in one case in New York (The People v. Randolph, 2 Park. 174), where the facts were quite similar. In reversing the conviction, the court said — what seems quite pertinent here — that “the prisoner was proved to have been of an age when the law presumes him to be incapable of committing the crime, and it. was the duty of the prosecution not only to meet, but to repel, this presumption by clear proof of his capacity.”

Recurring to the case presented in the record, it is quite clear that the learned judge, in the court below, overlooked the' statute dispensing with the proof of emission. This is not strange, in view of the confused condition of our statute law, from which, I hope, we are about to have relief. This oversight does not, of itself, call for a reversal, although, in consequence of it, the attention of the jury was directed rather to the capacity of the accused, as exhibited in the actual occurrence, than to his capacity in point of fact. But the vice in the charge is the statement that penetration, rupture of the hymen, and the discharge of any sort of “ sexual fluid,” would cast on the accused the burden of proof, to show that such fluid was not seminal. The proof of penetration and rupture of the hymen was not prima facie evidence, as it would have been in case of a boy over fourteen years of age, that the accused had arrived at puberty. The direct proof of emission was slight. But, however cogent the evidence may have been, it was for the jury. In some cases it is proper to say to a jury what their verdict must be, if they find particular facts to be proved (as in Walker v. Stetson, 14 Ohio St. 89); but, on an issue like that involved in this case, a court is not authorized to enumerate facts of no determinate value, and say, that, if they are proved, a prima facie ease for conviction is made. State v. Learnard, 41 Vt. 585 ; Railroad Co. v. Lawrence, 13 Ohio St. 66.

We are satisfied the proper course, in this case, was to have said to the jury, in substance, that if they found the accused had sexual intercourse with the child, in the manner stated in the indictment, but that ho was, at the time, under fourteen years of age, the burden was on the state to show that he was capable of emitting semen ; and that the weight which should be given to the evidence, tending to prove or disprove such capacity, was for the consideration of the jury.

Of course, if an assault was proved, but not the rape, the prisoner might have been convicted of the assault.

Eor error in the particular stated, the judgment must be reversed, and cause remanded for a new trial.

Judgment reversed.

Boynton, J., dissented from the judgment of reversal.  