
    William Blackburn v. The State of Ohio.
    It is at the age of puberty, and not at the age of majority, that a female ceases to be a “child” and becomes a “woman,” within the meaning of the statute defining the crime of rape.
    Emission is a necessary element in the crime of rape.
    Error to the Common Pleas of Montgomery county.
    The plaintiff in error was convicted and sentenced for the crime of rape, charged to have been committed upon Mary Donnelly, who is described in the indictment as being a woman other than the daughter or sister of said William Blackburn.” On the trial, there was evidence tending to show that said Mary Donnelly, at the time of the alleged commission of the crime, was under eighteen years of age, and was of the age of about seventeen. The state gave evidence tending to prove the alleged felonious assault, and that the prisoner had consummated the crime by actual penetration and emission, but there was also evidence tending to prove the absence of emission.
    The prisoner’s counsel asked the court to charge the jury, that if they found that Mary Donnelly, at the time of the transaction, was under eighteen years of age, they should acquit the prisoner on the ground that Mary was a “ child,” and therefore improperly described in the indictment as a “ woman.” The court refused this instruction, and charged that she was properly described as a woman, if, at the date of the transaction, she had arrived at the age of puberty, although not eighteen years old.
    The prisoner’s counsel also asked the court to charge the jury, that if they did not find the fact of emission, as well as penetration, they must acquit the prisoner. This instruction the court also refused, charging the jury that emission was not necessary in order to constitute the crime of rape.
    To both these charges the counsel for the prisoner excepted, and they now ask this court to reverse the judgment, on the ground that the court below erred in giving them, and in refusing the instructions asked.
    Other errors are assigned upon the record, but the view taken of the case by the court renders their notice and consideration unnecessary.
    
      Conover § Craighead, for plaintiff in error:
    I. The proof does not support the indictment.
    Section 5, crimes act (S. & C. 404), names three classes of females upon whom rape may be committed:
    1. A “ woman ” other than the daughter or sister of the defendant.
    2. A “ female child ” other than the daughter or sister of the defendant
    3. A “female child under ten years of age” with her consent, by a male person over seventeen years of age.
    This indictment charges that the offense was committed upon Mary Donnelly, a “ woman,” etc.
    The proof shows that she was between sixteen and seventeen years of age at the time of the commission of the alleged offense.
    "We claim that she was not then <?a woman,” but “a female child.”
    The statute uses both terms, evidencing a legislative intent to divide the female sex of human kind into separate and distinct classes so far as concerns the crime of rape.
    "Warren, in his Ohio Criminal Law, recognizes this intent, and furnishes distinct forms of indictment in accordance with it. See p. 250, 3 ed.
    By Ohio law, females under the age of eighteen years are “infants.” In legal and common parlance, a “child” is an “infant.”
    II. The court erred in refusing to charge that penetration and emission are both essential to the crime of rape in Ohio; and in charging that penetration alone was sufficient.
    “ To constitute carnal knowledge, there must be both penetration and emission; both these are necessary elements in the crime of rape. Hence, before an infant has arrived at the age of puberty, or before, by the physical laws of human nature, he can emit seed, he is incapable of committing the crime of rape. Williams v. The State, 14 Ohio, 226.
    The question as to emission being essential to rape, was directly and necessarily involved in said ease. If the defendant was too young to emit seed, he was incapable of committing rape. Why ? Because emission was essential to the crime.
    The evidence in the case at bar tended to show that the parties were separated lefore completing the act.
    We admit that the common law rule upon this point has been changed in England by recent statutes, but claim that it remains in Ohio as laid down in Williams v. The State.
    
    III. The court erred in overruling the motion for a new trial.
    1. The circumstances, as detailed by the prosecutrix herself, cast doubt upon her statement that the act was committed forcibly and against her will; and this .doubt is strengthened by the testimony of the two surgeons, and by the variance between her statements made immediately after the occurrence and those made by her on the witness stand at the trial.
    It is dangerous, and contrary to the policy of our law, to allow a conviction upon the unsupported testimony of the female involved. Sec. 147 Crim. Code, 66 Ohio Laws.
    2. The defendant below, being upon the stand as a witness on his own behalf, should not have been compelled to testify as to his having been arrested for assault and battery, the record disclosing an arrest merely (no prosecution, no imprisonment), and a discharge by order of the prosecuting attorney.
    3. The affidavit of Mrs. Kendall, in connection with the record, showing due diligence on the part of the defendant and his counsel, made a case entitling the defendant to another trial upon the ground of newly-discovered evidence.
    
      JEJ. Thompson, prosecuting attorney, for the state :
    I. The first exception, by defendant, was taken upon his being required to answer the question, “ Have you been in jail upon a charge of assault and battery.”
    The defendant answered affirmatively, and that no prosecution or conviction followed his being discharged upon his own recognizance.
    This question we believe to have been settled in the case of Wroe v. The State, 20 Ohio St. 460; 8 Gray, 172; 42 N. Y. 265; Roscoe Crim. Ev. 181.
    This course of examination is sanctioned in a recent publication — Ram on Eacts — in which the author gives a number of illustrations, among which are the following:
    1. Whether he has ever been charged with crime? 2. Whether he has ever been in jail? 3. Whether he has been punished as a soldier? 4. Whether he testified under promise of reward? 5. Whether he had testified under promise of pardon ? 6. Whether he had talked about the matter? 7. Whether enmity had been expressed by witness? 8. Whether she was an accomplice? 9. Whether an advantage has been promised on account of his testimony ?
    This is permitted for the purpose of enabling the jury to judge if the witness is entitled to credit or not. Ram on Eacts, 153-161.
    
      II. As to the personal description of Mary Donnelly, as a woman.
    The evidence shows she was seventeen years of age and had arrived at puberty.
    The terms “woman” and “female child,” used in section 5 of the crimes act, are intended to distinguish the persons upon whom the offense — rape—may be committed from those mentioned or described in section 4. S. & C. 404.
    The words “ as aforesaid,” in. section 5, require the words “’woman or female child” to be read with reference to the words “ daughter or sister ” in the preceding section. Williams v. Newton, 14 M. & W. 747.
    Such words are descriptio persones, or addition, and if false should be taken advantage of by plea in abatement. 1 Met. (Mass.) 151. See Crim. Code, 90, 91, 108, 110, 111.
    An accused person shall be taken to have waived all defects which may have been excepted to, by a plea in abatement, by pleading (as in this case) the general issue. Crim. Code, sec. 111.
    Under this state of the law, section 91 of the code must henceforward govern this case, in which it is claimed a variance exists between the averments and the proof. Laws, 1869, p. 301.
    This section provides that, “ Whenever there shall appear to be any variance between the statement in the indictment and the evidence offered in proof thereof,” as to the name, surname, or any other description whatever of any person therein named or described, “ such variance (if any there be) shall not be deemed ground for acquittal,” unless the court shall find such variance material to the merits of the case or prejudicial to the defendant.
    Mary Donnelly is described:
    1. Negatively as not being the “daughter or sister” of Blackburn.
    2. Affirmatively, as.a “woman.” See indictment.
    Each of these are necessary averments. Howard v. State, 
      11 Ohio St. 828; Hirn v. State, 1 Ohio St. 15; Stanglein v. State, 17 Ohio St. 368.
    How shall the term “ woman,” as used iu section 5 of the crimes act, be construed?
    “ As for words,” says Puffendorfl", “ used in a statute, the rule is that unless there is reasonable objection against it, they are to be understood in their most proper known signification, not so much according to any grammatical, as their general use.” Potter on Stat. 182.
    Again, it is said the popular or received import of words furnishes the general rule for the interpretation of statutes. Maillard v. Lawrence, 16 How. (U. S.) 251; Potter on Stat. 143.
    Webster, in his Unabridged Dictionary, defines
    “ Woman. — The female of the human race grown to adult years.”
    
      “Adult. — Any person grown to full size and strength, or to the years of manhood or vwmanhood.”
    
    
      “ Womanhood. — The state, character, or collective qualities of a woman.”
    
      “Puberty. — The age at which persons are capable of bearing children.”
    “ Women. — All the females of the human race. All such females as have arrived at the age of puberty
    
    See Bouv. Law Die., title Women.
    Quoting the Digest, this author adds :
    “ Mulieris appellatione etiam virgo viripotens continetur.”
    Or, as translated:
    Even a virgin who is capable of producing offspring, is comprehended in or included under the general name woman. Bouv. Law Dic. 661.
    It is a maxim in logic that “ eontrariorum eadem est scienta” — we never really know what a thing is, unless we are able to give an intelligent account of its opposite. Mill’s Logic, book T, p. 448.
    To the opposite result are the definitions of the words “ child and childhood.”
    
      “Child. — An infant, son or daughter.”
    
      
      “Childhood. — The state of a child, or the time in which persons are children, including the time from birth to puberty. But in a more restricted sense, the state or time from infancy to puberty.”
    The defendant’s counsel rely on the statutes fixing the age of majority, and capacity for persons obligating themselves by contract. S. & O. 694; Bouv, L. D. 704, Infants.
    The statutes fixing the age of majority in males and females, and those defining the offense of rape upon certain females, are not statutes in pari materia, so as to be thus construed together, and thereby arrive at the sense, claimed by counsel for Blackburn, that female, as used in the former act, is synonymous with woman as used in the crimes act. Potter on Stat. 145 (17); Gallup v. Com., 20 Ohio St. 324.
    Statutes defining the offense of carnal knowledge with children, and that of child-stealing, which seem to be more nearly appropriate, fix the age at ten years. We think no conclusion upon this point can be drawn from either source.
    The office of all interpretation being that of bringing the sense out of words and phrases, so as to accord with the' legislative intent, such words are presumed to have been employed by the enacting power in accordance with the idea which custom and common usage has affixed to such expressions.
    Potter’s Stat. 127 (9, 10), 184; Clusky v. Cromwell, 11 N. Y. 601, 602; Hart v. Cleis, 8 Johns. 44; Waller v. Harris, 20 Wend. 561, 562; Lamberton v. State, 11 Ohio, 284.
    It is in this sense, we maintain, that the legislature has used the term — woman—in section 5 of the crimes act defining rape, and upon which section this indictment is predicated.
    See Bowles v. State, 7 Ohio, pt. 2, pp. 243, 246 (599, 602), as to description of persons in indictments for rape, etc., and 15 Ohio St. 328.-
    3. Is emission necessary to constitute rape ?
    The proposition that, in Ohio, both penetration and emission are necessary to constitute rape, is taken from the argument of Read, J., in Williams v. State, 11 Ohio, 222.
    
      This point was not before the court in that case.
    The question was upon the rule of evidence, which, prior to 9 Geo. IY (1828), had prevailed in England, as stated in Rex v. Edershaw, 3 C. & P. 396, to the effect that:
    “ A boy under the age of fourteen years can not be convicted of assault with intent to commit a rape, and if the jury found the fact that the accused was under fourteen years of age, no evidence was admissible to show that, in fact, he was capable of consummating this offense.” 8 C. & P. 736; 9 C. & P. 118; Fisher’s Digest C. L. 480.
    Instead of the English rule prohibiting such testimony, the court held that the presumption of incapacity to commit the crime of rape might be rebutted,by proof of puberty. 11 Ohio, 222, 227.
    By statute of 9 Geo. IV, and 24 and 25 Vic., “ penetration only shall be necessary to be shown to constitute the carnal knowledge.” Fisher’s Dig. C. L. 428, ch. 31; Rex v. Jennings, 4 C. & P. 249; Rex v. Reekspear, 1 M. C. C. 342; Rex v. Jordan, 9 C. & P. 118; 1 Lewin’s C. C. 93.
    The remark of Judge Read, that “ both penetration and emission are necessary elements in the crime of rape, “forms no part of the question involved in that case, and can not be held as declaratory of the law upon that subject. Although it shall appear from the evidence, beyond all possibility of doubt, that the party accused was disturbed immediately after penetration, and before any further completion of the offense, as Blackburn claims to have been by Webb, yet the conviction was proper upon the authority of Reg. v. Allen, 9 C. & P. 31.
    We think the court below stated the rule correctly. See Warren’s Ohio Orim. Law, 250, 251.
    4. As to newly-discovered evidence.
    The question is not whether the jury would have returned a different verdict, but whether the legitimate effect of such evidence would be to require a different verdict. Lessee, etc. v. Parks, 4 Ohio, 5; Hilliard on N. T. 385, 396, note a; Fleet v. Hollenkemp, 13 B. Mon. 219; Howe v. Bodman, 1 Disney, 118; Muhlenburg v. Florence, 12 Ohio, 151.
    
      A new trial will not be granted on tbe ground of newly-discovered evidence, if the only object be to impeach the credit of a witness.
    
      Bland v. State, 2 Cart. (Ind.) 608; Porter v. State, Ib. 435; Garner v. Garner, 2 Gray, 434, 444; Dunn v. Cronise, 9 Ohio, 83; Reed v. Grow, 5 Ohio, 375; 3 Gra. & Wat. 1074; 1 Arch. C. P. & P. 652, 7 ed.; Hilliard on New Tr.
    Mrs. Kendall was subpenaed by defendant, was present in court, was required to withdraw upon defendant’s motion for separation of witnesses during trial, and arranged (as she says) to be present when needed.
    See State v. Blennerhassett, Walker (Miss.), 7; 1 Arch. C. P. 648, h.
    
   Welch, C. J.

In the popular and most common use of the words, the female ceases to be a “ child,” and becomes a “ woman,” at the age of puberty, and this seems to be in accordance with the primary or leading definitions of the terms by lexicographers. That meaning of the words is, moreover, peculiarly appropriate in a statute for the punishment of this crime — a crime against the person and sexual purity of the female. The very nature of the subject suggests at once that it is the physiological and genital development of the female, and not her mental condition, that should determine the period of her womanhood. Sexually and physically, she may be, and generally is, a woman years before she becomes a woman sui juris, according to the law which fixes the age of her majority. We think the court gave the jury the true rule of law on the subject.

With respect to the question involved in the latter branch of the charge, namely, whether emission is a necessary ingredient in the crime, there is more serious ground for doubt. The current of English authorities seems to be that, at common law, it was held to be a necessary ingredient. In this country, it must be admitted that the decisions are strongly in the other direction. In England, in New York, and. perhaps in other states, statutes have been passed eliminating this element from the criinei No such statute has ever been enacted in Ohio, although the case of Williams v. The State, 14 Ohio, 222, in which the court seem to hold that emission is a necessary element in the crime, has stood before the country, as the apparent law of Ohio on the subject, for many years. Under these circumstances, although, were it a new question, we would stronglyinclineto a contrary decision, we do not feel at liberty to depart from the doctrine laid down in that case. The remedy, if any is needed, we think should be left with the legislature. The necessity of a statute modifying the common law in regard to what constitutes the crime has been, in a great measure, relieved, in Ohio, by the act punishing the crime of assault with intent to commit a rape, in which, of course, the element in question is not necessary. While the maximum punishment for this latter crime is less than that for the crime of rape, the minimum punishment is in both cases the same. We are of opinion that there was error in the latter branch of the charge, and that, for this reason, the judgment must be reversed.

Judgment reversed, and cause remanded.  