
    *Joseph Williams v. The State of Ohio.
    The law presumes that an infant under the age of fourteen years is incapable of committing or attempting to commit the .crime of rape; but this presumption may be rebutted by proof that such person has arrived at the age of puberty.
    This is a writ of error to the court of common pleas of Franklin county.
    The record shows that the plaintiff, in the court below, had been prosecuted in that court for a rape. The indictment contains two counts, one for commission of a rape, the other for an assault, with intent to eommit a rape. The cause was tried by a jury, and the plaintiff found guilty of an attempt to commit a rape, and not guilty as to the other count.
    The bill of exceptions, disclosing the errors complained of, is as follows:
    “ Be it remembered that, on the trial of this cause, the defendant produced evidence tending to show that he was under the age of fourteen years at the time of the commission of the offense charged, and the state adduced testimony tending to show that the defendant had arrived at puberty at the time of the commission of said offense; and thereupon the defendant, by his counsel, asked the court to instruct the jury :
    1. That if the jury found that tho defendant was under the age of fourteen at the timo of the commission of the offense charged, he could not be found guilty under the said second count of the indictment, though, in fact, he had arrived at physical puberty.
    2. That if, from lack of age, the defendant could not be found guilty of the crime of rape, as charged in the first count of the said indictment, he could not be found guilty of an attempt to commit a rape, as charged in the second count of the indictment.
    The court refused so to charge the jury, but charged that the fact of the defendant being under fourteen years of age was ^presumptive evidence that the defendant had not arrived at physical puberty, which presumption must be repelled by the state. And if the jury found that the defendant had, in fact, arrived at physical puberty, the circumstance of his being under fourteen years of age, would not, of itself, in law, authorize the jury to acquit the' defendant upon the second count; and thereupon the defendant excepted, on account of the court refusing to charge the jury as prayed, and on account of the charge in the premises, and which exceptions the court seal.
    On which the following errors were assigned:
    1. The court erred in refusing to instruct the jury as prayed, to wit, that if they found that tho defendant was under the age of fourteen years at the time of the commission of the offense charged, he could not be found guilty under the second count of the indictment, though in fact he had arrived at physical puberty.
    2. The court erred in refusing to instruct the jury as prayed, to wit, that if, from lack of age, the defendant could not be found guilty of the crime of rape, as charged in the first count of said indictment, he could not be found guilty of an attempt to commit a rape, as charged in the second count of the same indictment.
    3. The court erred in instructing the jury that the fact of the defendant being under the age of fourteen years, would not, of itself, in law, authorize the jury to acquit the defendant upon the second count of the said indictment.
    4. That said verdict was rendered against the defendant when, by the laws of the land, he ought to have been acquitted.
    Piekpont & SrARROW, for the plaintiff:
    Insisted that, by the common law, as settled for a long period, and by an unbroken seines of decisions, a boy under the age of fourteen could neither be convicted of the offense of committing *a rape, nor of an assault with an attempt to commit a rape, no matter what might be his physical capacity, and quoted the following modern English decisions, as in point, and showing that the strictness of the rule had not been departed from: 14 Eng. Com. Law, 367; 38 Eng. Com. Law, 63; 8 Carr. & Payne, 736.
    They also reforred to the following authorities: Archb. Crim. Pl. 9, 10, 452, 454; Roscoe’s Crim. Ev. 797-799, 802; 4 Black. Com. 212, 215, 210, 23, 436; 1 Russell on Crimes, 527, 534, 526; Steph. Crim. Law, 153; Broom’s Legal Maxims, 149; 1 Coke Lit. 123; 2 Kent’s Com. 78; Chase’s Stat. 1724, sec. 5; Swan’s Stat. 230, secs. 5, 6; 2 N. Y. Rev. Stat. 735; Roget’s Physiology, 339, and Mueller’s Physiology, 827.
    Lewis Heyl, for the state :
    Contended that the reason on which the rule was founded in England, ceased in this country; and that, with the cessation of the reason, the rule of evidence should cease; that, composed as community was here, of citizens of almost every nation and their descendants, and especially of the descendants of the natives of the tropical climate of Africa, it was a fact that an infant under fourteen years, was often capable of committing the offense of rape; and hence the safety of community requires that here the presumption of law should give way to proof — that, if the proof shows that he has arrived at the age of puberty, he may be found guilty.
    In support of this position, the cases of Pennsylvania v. Sullivan, Add. 143; Commonwealth v. Thomas, 1 Va. Cas. 307; State 
      v. Le Blanc, 15 C. 359; Commonwealth v. Green, 2 Pick. 381, were cited.
    The following additional authorities were also cited, in the course of the argument.
    1 Hale’s P. C. 630, 628; 1 Russell on Crimes, 557, 560; *3 Chit. Crim. Law, 810, 812; 1 Buck’s Med. Jur. 519; Roscoe’s Crim. Ev. 799; Chit. Med. Jur. 383; Mueller’s El. of Phys. 827 ; Roget’s Phys. 339, 812; Swan’s Stat. 230, sec. 5, and 232, sec. 14, 17; 7 Ohio, 243, pt. 2; and Chase’s Stat. 1724, secs. 5, 6.
   Read, J.

Our statute fixes no age within which a person is incapable of committing or attempting to commit the crime of rape, the common law presuming that an infant, under the age of fourteen years, is unable to commit the crime of rape, and therefore he can not be guilty of-it, or of an assult with intent to commit a rape; and, if he be under that age, no evidence is admissible to show that, in point of fact, he could commit the crime. This has been the established law of England for many hundred years, nor has it been departed from in the United States, except in a single instance in the State of Massachusetts, where it was held that a boy under the age of fourteen years could be convicted of an attempt to commit this offense. This' doctrine proceeds upon the ground of impotency, rather than want of discretion; because all persons, infants and even females, may be convicted of aiding and assisting in this offense, as well as in other fcrimes, if there be proof-that the infant had a mischievous discretion. The question is, shall this presumption of the common law prevail in Ohio, to exempt the person under fourteen years from punishment for the actual commission of a rape or an attempt to commit a rape? And if not, to what extent will it bo recognized? And will proof of positive capacity to commit the offense, authorize the/conviction of a person under the age of fourteen years of the crime of rape, or an attempt to commit it ?

We admit that we have much hesitation in departing from long established principles of law, which have had the sanction of the wisest judges and the test of years. But the principles of the common law respecting evidence of the capacity to commit crime, are founded in the very reason of things, the ^nature of man and social life, and are adopted from their innate truth and good sense. Those principles of law which are of binding force only from the authority of truth, may be justly styled the perfection of reason ; and the obligation of the rules of the common law having this foundation, it is a maxim that, when the reason out of which the rule given ceases, the rule itself ceases. '

Rape is defined to be the having unlawful and carnal knowledge of a woman, by force and against her will. To constitute this , 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. If, then, it be a fact that, prior to the age of fourteen, an infant is incapable of emission, the rule of law which fixes that as the age within which an infant can not be convicted of rape, or an attempt to commit it, is founded in' reason, and is of binding authority ; because it proceeds upon the fact that the infant has not committed the crime and could not commit it. If it were an invariable law of human nature that an infant under the age of fourteen years could not emit seed, it would be a reasonable rule that evidence should not be permitted to contradict it; because it would be worse than idle to introduce evidence to contradict that which is necossariiy true.

But if,0in a vast majority of cases, infants under the age of fourteen years, are incapable of emitting seed, then it is a reasonable and necessary presumption of law that any named infant under that age is incapable of committing the crime, and the presumption is strong or weak just in proportion to the rareness or frequency of the exceptions. Now, in the moist and cold climate of England and most of the countries of northern Europe, it is so seldom that an infant under the age of fourteen is capable of emission, that it is assumed as a fact that, prior to that age, he is never óapable ; and hence, under that age,no one can be convicted of rape. This rule there *may have reason. But, in tropical climates, where the male usually arrives at puberty before the age of fourteen, the rule, instead of being founded in reason, would contradict both reason and fact. It is an admitted law of physiology, that climate, habit, and condition of life have much influence in hastening or retarding the age of puberty. Different races of men differ as to the age of puberty.

In our climate, the age of puberty is frequently earlier than in that of England or the more northern states of this Union. We have among us almost every variety of the races of men. To adopt the rule, then, which exists in England and more northern countries, where the climate, condition, and habits of the people are different, and the population mostly of one race, would not only be a departure from reason and good sense ; but would be in violation of the statute itself, by withdrawing persons who had actually violated it, from punishment. In England they do not propose to permit guilty persons to escape, but assume the physical impossibility of an infant under fourteen years being capable of being guilty. In our state, we know that many infants under fourteen are capable of being guilty; but that a majority are not capable, under that age. Hence we are compelled to suit the rules of law to the fact, as the rule itself has no authority but in fact. The reason of the rule, excluding proof that an infant under the age of fourteen years is capable of committing the crime of rapé ceasing, the rule itself ceases. Modified, then, to our oyn circumstances and condition, tho law is this: An infant under the age of fourteen years is presumed to be incapable of committing the crime of rape, or an attempt to commit it; but that presumption may be rebutted by proof that he has arrived at the age of puberty, and is capable of emission and consummating the crime.

The. charge of the court below was therefore correct; and we refuse to reverse the judgment.  