Opinion by
Kephart, J.,
The defendant was twice tried. His first trial resulted in a conviction of murder in the first degree. This judgment was reversed by the Supreme Court in an opinion by Mr. Justice Stewart, Com. v. Exler, 243 Pa. 155. The second trial (and here appealed) was on the charge of rape under the Act of May 19, 1887, P. L. 128, which reads as follows: “If any person......who being of the age of sixteen years and upwards, shall unlawfully and carnally know and abuse any woman child under the age of sixteen years, with or without her consent, such person shall be adjudged guilty of felonious rape......” Appellant contends that if a verdict for statutory rape could have been returned upon the indict[433]*433"ment charging murder, he would have been in jeopardy under that indictment and could not again be placed in jeopardy under the present indictment. The defendant had been charged with common law murder, death occurring in consequence of consensual fornication or statutory rape. Com. v. Exler, supra, holds that murder and rape should be given their common law meanings. Rape as thus defined would not include statutory rape. The evidence presented at that trial fell short of establishing a common law rape, and had the defendant been then indicted for rape,, without proof of want of consent, there could have been no conviction. The fact that the legislature calls consensual fornication felonious rape, would not cause it to be an ingredient or constituent element of common law murder without express legislative direction. It follows, therefore, that under the first indictment (excluding the question as to whether under an indictment for murder a verdict for rape could be returned) the defendant could not have been convicted of “statutory rape,” it not being an element of common law rape, and therefore not an element of common law murder. Unless the evidence presented at the former trial could have resulted in a legal conviction of the offense there charged, or some offense forming a constituent part of the offense there charged, the prisoner would not be in jeopardy, though substantially the same evidence is used in another trial for an offense declared not embraced within the first indictment and insufficient to support any verdict thereunder: Hilands v. Com., 114 Pa. 372; Com. v. Shœner, 216 Pa. 71.
To carnally know and abuse any woman child under the Act of 1887, there must be penetration or an attempt to have intercourse. There must be at least contact of the sexual organs: Wharton’s Criminal Law, 11th Ed., Vol. I, Section 684, p. 855; 33 Cyc. 1421. In this case the proof of penetration, the necessary fact to show that the crime was committed, and that the defendant was [434]*434responsible for that crime, rests solely on circumstantial evidence. The defendant, age twenty-five, with Lillian Schadle, aged twelve, was seen by a number of persons on tbe afternoon of November 27, 1912, going into a stable owned by defendant’s parents. This was tbe last time the girl was seen alive. The next day her body was taken from a reservoir not far distant. The only external mark of violence disclosed by the autopsy and other testimony was the laceration of the perineum for the depth of an inch, or “a split through the perineum connecting the vagina and rectum” converting “both these openings into one large opening.” “The splitting process started at the vagina” going downward and “was caused by the introduction of some object within the vagina. The most probable object was a male organ.” On cross-examination Dr. Schildecker, the medical expert chiefly relied on by the Commonwealth, was asked if this injury could have been produced by falling on a protruding object or on a chair. This he admitted was possible but “very improbable” and said that falling on an object “would produce a much more severe injury.” The essential element of this crime, which lacked positive evidence, was the fact of penetration. That penetration in a charge of rape, as the corpus delicti in any other case, may be proven by circumstantial evidence, is generally accepted as the law: Wharton’s Criminal Law, 11th Ed., Vol. I, p. 870. “Circumstantial evidence is, in the abstract, nearly, though perhaps not altogether, as strong as positive evidence; in the concrete, it may be infinitely stronger”: Com. v. Harman, 4 Pa. 269. Whether such evidence has been produced sufficient in quantity to overcome the presumption of innocence and reasonably free from hypotheses other than guilt, is for the court. The affirmative facts here shown are consistent with the hypothesis of penetration, their probative value being the degree of certainty created in the minds of the jury. Their weakness, if any, comes from the existence of possible causes other than the one [435]*435here claimed to be the producing cause of the injury.. If these other causes are vaguely remote or not consistent with the proven facts, they cannot be considered as being sufficient to destroy this probative value of the affirmative facts shown, or stamp these facts as not being sufficient to present a prima facie case. These hypotheses other than guilt must produce disbelief, “that is, actual, and not technical disbelief; for he who is to pass on the question, is not at liberty to disbelieve as a juror (or a judge) while he believes as a man: It is enough that his conscience is clear”: Com. v. Harman, supra. There were no marks, abrasions, or bruises in the region of the injury other than the wound described. If this laceration were made by falling on a chair, or on a protruding object, the body would show such bruises or abrasions in the region of this injury on other parts of the body; and as to child birth being a possible cause, under the evidence it was too remote for consideration. These possibilities, such as are urged as being sufficient to produce moral uncertainty as to the fact of penetration, are further removed, their influence lessened, and the existence of the disputed fact strengthened, when we consider the defendant’s relation to the crime, particularly, that portion of his body, or clothing, that would, if he be guilty, be brought in contact with the female organs. We have his admission, made very shortly after the crime was committed, that there were blood spots on his trousers, which he stated came from urinated blood. There was testimony that blood was found on the tail and cuff of his shirt. There was no explanation of these inculpatory facts. Circumstantial evidence as to the fact of a crime committed, and its author, should be such as to exclude all rational theories but that the crime existed and the accused was its author; and in criminal cases great care should be taken that this proof should be clear and unequivocal. Such was the evidence here produced by the Commonwealth; it was sufficient to warrant a finding of penetration. We need not narrate [436]*436the facts showing this defendant to be the author of the crime. But one conclusion could be drawn therefrom. While some of the events standing alone would be of little evidentiary value, yet taken in connection with the proof of identification and the conduct of the defendant after the commission of the crime, they become important links of evidence bearing strongly in establishing the defendant’s guilt. We refer to the evidence as to the disposition of the girl’s body, and the likeness of the defendant to the person coming from the direction of this stable, driving a horse and dropping some object into the reservoir.
The eighth and ninth assignments complain of the manner in which the jury was selected.
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Opinion by
Kephart, J.,
The defendant was twice tried. His first trial resulted in a conviction of murder in the first degree. This judgment was reversed by the Supreme Court in an opinion by Mr. Justice Stewart, Com. v. Exler, 243 Pa. 155. The second trial (and here appealed) was on the charge of rape under the Act of May 19, 1887, P. L. 128, which reads as follows: “If any person......who being of the age of sixteen years and upwards, shall unlawfully and carnally know and abuse any woman child under the age of sixteen years, with or without her consent, such person shall be adjudged guilty of felonious rape......” Appellant contends that if a verdict for statutory rape could have been returned upon the indict[433]*433"ment charging murder, he would have been in jeopardy under that indictment and could not again be placed in jeopardy under the present indictment. The defendant had been charged with common law murder, death occurring in consequence of consensual fornication or statutory rape. Com. v. Exler, supra, holds that murder and rape should be given their common law meanings. Rape as thus defined would not include statutory rape. The evidence presented at that trial fell short of establishing a common law rape, and had the defendant been then indicted for rape,, without proof of want of consent, there could have been no conviction. The fact that the legislature calls consensual fornication felonious rape, would not cause it to be an ingredient or constituent element of common law murder without express legislative direction. It follows, therefore, that under the first indictment (excluding the question as to whether under an indictment for murder a verdict for rape could be returned) the defendant could not have been convicted of “statutory rape,” it not being an element of common law rape, and therefore not an element of common law murder. Unless the evidence presented at the former trial could have resulted in a legal conviction of the offense there charged, or some offense forming a constituent part of the offense there charged, the prisoner would not be in jeopardy, though substantially the same evidence is used in another trial for an offense declared not embraced within the first indictment and insufficient to support any verdict thereunder: Hilands v. Com., 114 Pa. 372; Com. v. Shœner, 216 Pa. 71.
To carnally know and abuse any woman child under the Act of 1887, there must be penetration or an attempt to have intercourse. There must be at least contact of the sexual organs: Wharton’s Criminal Law, 11th Ed., Vol. I, Section 684, p. 855; 33 Cyc. 1421. In this case the proof of penetration, the necessary fact to show that the crime was committed, and that the defendant was [434]*434responsible for that crime, rests solely on circumstantial evidence. The defendant, age twenty-five, with Lillian Schadle, aged twelve, was seen by a number of persons on tbe afternoon of November 27, 1912, going into a stable owned by defendant’s parents. This was tbe last time the girl was seen alive. The next day her body was taken from a reservoir not far distant. The only external mark of violence disclosed by the autopsy and other testimony was the laceration of the perineum for the depth of an inch, or “a split through the perineum connecting the vagina and rectum” converting “both these openings into one large opening.” “The splitting process started at the vagina” going downward and “was caused by the introduction of some object within the vagina. The most probable object was a male organ.” On cross-examination Dr. Schildecker, the medical expert chiefly relied on by the Commonwealth, was asked if this injury could have been produced by falling on a protruding object or on a chair. This he admitted was possible but “very improbable” and said that falling on an object “would produce a much more severe injury.” The essential element of this crime, which lacked positive evidence, was the fact of penetration. That penetration in a charge of rape, as the corpus delicti in any other case, may be proven by circumstantial evidence, is generally accepted as the law: Wharton’s Criminal Law, 11th Ed., Vol. I, p. 870. “Circumstantial evidence is, in the abstract, nearly, though perhaps not altogether, as strong as positive evidence; in the concrete, it may be infinitely stronger”: Com. v. Harman, 4 Pa. 269. Whether such evidence has been produced sufficient in quantity to overcome the presumption of innocence and reasonably free from hypotheses other than guilt, is for the court. The affirmative facts here shown are consistent with the hypothesis of penetration, their probative value being the degree of certainty created in the minds of the jury. Their weakness, if any, comes from the existence of possible causes other than the one [435]*435here claimed to be the producing cause of the injury.. If these other causes are vaguely remote or not consistent with the proven facts, they cannot be considered as being sufficient to destroy this probative value of the affirmative facts shown, or stamp these facts as not being sufficient to present a prima facie case. These hypotheses other than guilt must produce disbelief, “that is, actual, and not technical disbelief; for he who is to pass on the question, is not at liberty to disbelieve as a juror (or a judge) while he believes as a man: It is enough that his conscience is clear”: Com. v. Harman, supra. There were no marks, abrasions, or bruises in the region of the injury other than the wound described. If this laceration were made by falling on a chair, or on a protruding object, the body would show such bruises or abrasions in the region of this injury on other parts of the body; and as to child birth being a possible cause, under the evidence it was too remote for consideration. These possibilities, such as are urged as being sufficient to produce moral uncertainty as to the fact of penetration, are further removed, their influence lessened, and the existence of the disputed fact strengthened, when we consider the defendant’s relation to the crime, particularly, that portion of his body, or clothing, that would, if he be guilty, be brought in contact with the female organs. We have his admission, made very shortly after the crime was committed, that there were blood spots on his trousers, which he stated came from urinated blood. There was testimony that blood was found on the tail and cuff of his shirt. There was no explanation of these inculpatory facts. Circumstantial evidence as to the fact of a crime committed, and its author, should be such as to exclude all rational theories but that the crime existed and the accused was its author; and in criminal cases great care should be taken that this proof should be clear and unequivocal. Such was the evidence here produced by the Commonwealth; it was sufficient to warrant a finding of penetration. We need not narrate [436]*436the facts showing this defendant to be the author of the crime. But one conclusion could be drawn therefrom. While some of the events standing alone would be of little evidentiary value, yet taken in connection with the proof of identification and the conduct of the defendant after the commission of the crime, they become important links of evidence bearing strongly in establishing the defendant’s guilt. We refer to the evidence as to the disposition of the girl’s body, and the likeness of the defendant to the person coming from the direction of this stable, driving a horse and dropping some object into the reservoir.
The eighth and ninth assignments complain of the manner in which the jury was selected. It arose in this manner: after the first juror was called, sworn on his voir dire, and examined, the district attorney objected to this practice as irregular and requested that the box be filled before any challenges were assigned. The trial court sustained the district attorney’s contention, whereupon the remaining nineteen jurors were called and examined on their voir dire. Challenges were then made under the Act of 1901. The trial court, in its opinion overruling the motion for a new trial, held that the practice of examining jurors on their voir dire in homicide, was irregular in other criminal cases; that the regular practice in these cases was to call all the jurors into the box, examine them on their voir dire, and challenge therefrom, allowing challenges for cause where it could be shown to exist, and if not, the challenges to be regulated by the Act of 1901. This, we take it, is the customary practice throughout the Commonwealth. It is the practice in Allegheny County. Trial courts should be permitted to regulate this practice. Where this is done, or a method of procedure is established by long continued custom, and these regulations do not offend against the Act of 1901, and there is no abuse of discretion or impairment of some right of the defendant, such rules or methods will not be disturbed by this court. It [437]*437is quite clear there is no abuse of discretion. Unnecessary delay in the trial of cases is thereby prevented. The method of selecting jurors had a tendency to be more beneficial than harmful to the defendant. The manner of selection was not contrary to the Act of 1901. The practice regulating the selection of jurors in homicide is very well established, and in other cases it is sufficient under this act if all the jurors are called into the box and the challenges are made before the persons called are sworn as jurors.
The objection to juror Willis is not well founded. It does not come within the rule laid down in Com. v. House, 3 Pa. Superior Ct. 304, and the ruling of the trial court on the objection made was in accordance with Com. v. Crossmire, 156 Pa. 304 (10th assignment).
We agree with the trial court in its holding that the petition for the return of personal property did not set forth sufficient facts to bring it within the rule of Weeks v. U. S., 232 U. S. 383 (11th assignment).
The court withdrew from the jury’s consideration the testimony of Beech as to the sacks of bran sold, and they were sufficiently instructed as to this testimony (12th and 13th assignments).
Assignments fourteen to nineteen, inclusive, complain of the charge of the court, and the answers to points. They are without merit; as is also the twentieth assignment, relating to the offer of the undergarments of the deceased, identified by the mother. For the purpose of identification, these garments were competent.
The objections to the remarks of the district attorney cannot fairly be the subject of error. He was the Commonwealth’s officer, charged with an important duty. It included, a presentation of the case as its circumstances demanded. We need not dwell on this further. The language used was a fair statement, considering the nature of the offense charged and the evidence presented (21st, 22d, and 23d assignments).
Much stress is laid on the testimony of Mary Hricz, [438]*438who identified the girl from the photograph in evidence. Whatever may be said as to the quality of this testimony, its weakness as developed through cross-examination, it was clearly for the jury’s consideration. The point submitted in relation thereto, if affirmed, virtually withdrew it from the jury’s consideration. The learned court’s action on this point, and on the evidence of this witness, as well as its instructions to the jury on the question of reasonable doubt, were in no manner prejudicial to the defendant (24th, 25th and 26th assignments).
The twenty-seventh assignment is without merit. We have reviewed the evidence with much care and are fully satisfied that the jury was warranted in reaching the conclusion that a statutory rape had been committed on this young girl, and. that this defendant was the author of the crime.
All the assignments of error are overruled, the judgment is affirmed.