White, Presiding Judge.
This appeal is from a judgment of conviction for rape. As stated in the indictment, the charge, omitting formal parts, is that the accused “did then and there unlawfully and feloniously, in and upon one Leona Harris, a female person and under the age of ten years, make an assault violently and feloniously, and did, then and there, by force and threats, against her will and without her consent, ravish, rape and carnally know her, the said Leona Harris, contrary,” etc.
Our statute declares that “rape is the carnal knowledge of a [325]*325woman without her consent, obtained by force, threats or fraud, or the carnal knowledge of a female under the age of ten years, with or without consent, and with or without the use of force, threats, or fraud.” (Penal Code, art. 538.) Now, whilst the statute gives this single definition of rape, it is evident that there are two classes of facts, each of which constitutes a rape, embraced within the statute, to wit, rape when committed upon “a woman,” and rape when committed upon “a female under the age of ten years.” Under the first class, that is, rape upon “a woman,” it is essential that the offense should have been committed without the consent of the woman, and by “force, threats, or fraud.” But it is not essential in such a case to allege or prove that the woman ravished is over ten years of age. (State v. Storkey, 63 N. C., 7.) And as a rape may be committed upon a woman of any age, should there be an averment that the injured person is “over ten years,” it would be entirely unnecessary, and would not be a constituent of the crime, and need not be contained in the indictment, or, if inserted, need not be proved; because the offense is complete without these words. (Swinney v. The State, 8 Smedes & Marsh., 576, 46 Miss., 501.)
Mr. Bishop says: “The indictment for rape need not allege the age of the female, or state that it was over ten years; nor need the age be proved.” (3 Bish. Crim. Proc., 3 ed., sec. 954; Moore v. The State, 30 Texas Ct. App., 375.)
With regard to the other class, to wit, rape upon a “female under the age of ten years,” none of the essential elements of rape as it is constituted when committed upon a woman are required either to be alleged or proved;—that is, the essential elements of force, threats or fraud, and want of consent. None of these elements are required, because the carnal knowledge of a female under ten years of age is in itself, ipso facto, rape.
Thus it will be seen that whilst the general definition of rape covers both classes of the offense, and whilst the punishment for both offenses is also the same under our statute (Penal Code, art. 534), yet the two classes are essentially distinct in their constituent elements. Can these two classes of this offense be joined, as has been done in the case before us, in a single count in the same indictment. This depends, it seems, upon the question as to whether or not the two offenses are separate and distinct offenses. “Duplicity in an indictment is the joinder of two or more distinct offenses in one count.” As a general rule, this the criminal law never permits, though there may be some rare [326]*326exceptional cases. (State v. Dorsett, 21 Texas, 656; State v. Randle, 41 Texas, 292; Weatherly v. The State, 1 Texas Ct. App., 643; 1 Bish. Crim. Proc., sec. 432.)
It seems that whether or not offenses are to be treated as separate and distinct specific offenses, depends upon whether or not they are embraced within the same general definition and punishable in the same manner. If they are, then they are not distinct offenses, and it is permissible to unite them in one count in the same indictment. Discussing the subject, Mr. Bishop says: “It is common for a statute to declare that if a person does this, or this, or this, he shall be punished in a way pointed out. Row, if in a single transaction he does all the things, he violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing only one of the things. Therefore an indictment upon a statute of this kind may allege in a single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction “and” where the statute has “or,” and it will not be double; and it will be established at the trial by proof of any one of them.” (Bish. Crim. Proc., sec. 436; State v. Smith, 24 Texas, 285; People v. Book, 16 N. Y. Weekly Dig., March 9, 1883.)
In The State v. Edmundson, 43 Texas, 162 (quoting from The State v. Barker, 63 N. C., 276), it is said: “ While it is important that the prisoner be sufficiently informed of the charge against him, so that he may make his defense, yet he can not complain that he is informed that if he did not do it in one way he did it in another, both ways being stated, and it is not to be tolerated that the crime is to go unpunished because the precise manner of doing it is in doubt.” When offenses are several in their nature, and yet of such a character that one of them, when complete, necessarily implies the other, there is no such repugnancy as to make their joinder improper. (Randle v. The State, 41 Texas, 292.)
These rules with regard to pleading seem to be well settled. We are of opinion, however, that where the difference as to the facts in the two classes of offense is so radical as in the two classes of rape, dependent upon the age of the injured female, if the pleader intends to prosecute for both classes, the better practice, certainly, would be to present each of the classes in separate counts in the indictment. But in this case there was no motion made to quash the indictment for duplicity, and, such being the case, the ri le is that, if duplicitous, the indictment [327]*327will not be quashed on that ground after verdict. (Coney v. The State, 2 Texas Ct. App., 62; 1 Bish. Crim. Proc., 3 ed., sec. 443.)
On the trial of this case the evidence established that, at the date of the alleged offense, the prosecutrix was over the age of ten years. In view of this testimony the defendant’s counsel requested the court to instruct the jury as follows: “You are instructed that in this case the defendant stands charged by indictment with the offense of rape upon a child under the age of ten years, and you are further instructed that if you believe from the evidence that Leona Harris, at the time of the commission of the offense, if any, was over the age of ten years, then and in that event you will find the defendant not guilty.” The learned trial judge explains his refusal of this special charge as follows: “ The above special instruction is refused because the indictment alleges that the offense was committed by means of ‘ force and threats ’ on the part of the defendant, and the allegation of age of the prosecutrix, or injured female, is not of that descriptive character which requires corresponding proof, the State having proved force and threats.”
The question arises, was the view taken by the court correct? Having alleged the age to be under ten years, was the State compelled to prove that the prosecutrix was under ten, and, the proof showing that she was over ten, was the variance between the allegation and proof material and fatal to the conviction ? It is clear from the allegation in the indictment that, if we eliminate the words “and under the age of ten years,” a sufficiently specific and distinct statutory offense of rape is charged. These words can be treated as surplusage and eliminated if they are not essential to the descriptive identity of the offense.
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White, Presiding Judge.
This appeal is from a judgment of conviction for rape. As stated in the indictment, the charge, omitting formal parts, is that the accused “did then and there unlawfully and feloniously, in and upon one Leona Harris, a female person and under the age of ten years, make an assault violently and feloniously, and did, then and there, by force and threats, against her will and without her consent, ravish, rape and carnally know her, the said Leona Harris, contrary,” etc.
Our statute declares that “rape is the carnal knowledge of a [325]*325woman without her consent, obtained by force, threats or fraud, or the carnal knowledge of a female under the age of ten years, with or without consent, and with or without the use of force, threats, or fraud.” (Penal Code, art. 538.) Now, whilst the statute gives this single definition of rape, it is evident that there are two classes of facts, each of which constitutes a rape, embraced within the statute, to wit, rape when committed upon “a woman,” and rape when committed upon “a female under the age of ten years.” Under the first class, that is, rape upon “a woman,” it is essential that the offense should have been committed without the consent of the woman, and by “force, threats, or fraud.” But it is not essential in such a case to allege or prove that the woman ravished is over ten years of age. (State v. Storkey, 63 N. C., 7.) And as a rape may be committed upon a woman of any age, should there be an averment that the injured person is “over ten years,” it would be entirely unnecessary, and would not be a constituent of the crime, and need not be contained in the indictment, or, if inserted, need not be proved; because the offense is complete without these words. (Swinney v. The State, 8 Smedes & Marsh., 576, 46 Miss., 501.)
Mr. Bishop says: “The indictment for rape need not allege the age of the female, or state that it was over ten years; nor need the age be proved.” (3 Bish. Crim. Proc., 3 ed., sec. 954; Moore v. The State, 30 Texas Ct. App., 375.)
With regard to the other class, to wit, rape upon a “female under the age of ten years,” none of the essential elements of rape as it is constituted when committed upon a woman are required either to be alleged or proved;—that is, the essential elements of force, threats or fraud, and want of consent. None of these elements are required, because the carnal knowledge of a female under ten years of age is in itself, ipso facto, rape.
Thus it will be seen that whilst the general definition of rape covers both classes of the offense, and whilst the punishment for both offenses is also the same under our statute (Penal Code, art. 534), yet the two classes are essentially distinct in their constituent elements. Can these two classes of this offense be joined, as has been done in the case before us, in a single count in the same indictment. This depends, it seems, upon the question as to whether or not the two offenses are separate and distinct offenses. “Duplicity in an indictment is the joinder of two or more distinct offenses in one count.” As a general rule, this the criminal law never permits, though there may be some rare [326]*326exceptional cases. (State v. Dorsett, 21 Texas, 656; State v. Randle, 41 Texas, 292; Weatherly v. The State, 1 Texas Ct. App., 643; 1 Bish. Crim. Proc., sec. 432.)
It seems that whether or not offenses are to be treated as separate and distinct specific offenses, depends upon whether or not they are embraced within the same general definition and punishable in the same manner. If they are, then they are not distinct offenses, and it is permissible to unite them in one count in the same indictment. Discussing the subject, Mr. Bishop says: “It is common for a statute to declare that if a person does this, or this, or this, he shall be punished in a way pointed out. Row, if in a single transaction he does all the things, he violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing only one of the things. Therefore an indictment upon a statute of this kind may allege in a single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction “and” where the statute has “or,” and it will not be double; and it will be established at the trial by proof of any one of them.” (Bish. Crim. Proc., sec. 436; State v. Smith, 24 Texas, 285; People v. Book, 16 N. Y. Weekly Dig., March 9, 1883.)
In The State v. Edmundson, 43 Texas, 162 (quoting from The State v. Barker, 63 N. C., 276), it is said: “ While it is important that the prisoner be sufficiently informed of the charge against him, so that he may make his defense, yet he can not complain that he is informed that if he did not do it in one way he did it in another, both ways being stated, and it is not to be tolerated that the crime is to go unpunished because the precise manner of doing it is in doubt.” When offenses are several in their nature, and yet of such a character that one of them, when complete, necessarily implies the other, there is no such repugnancy as to make their joinder improper. (Randle v. The State, 41 Texas, 292.)
These rules with regard to pleading seem to be well settled. We are of opinion, however, that where the difference as to the facts in the two classes of offense is so radical as in the two classes of rape, dependent upon the age of the injured female, if the pleader intends to prosecute for both classes, the better practice, certainly, would be to present each of the classes in separate counts in the indictment. But in this case there was no motion made to quash the indictment for duplicity, and, such being the case, the ri le is that, if duplicitous, the indictment [327]*327will not be quashed on that ground after verdict. (Coney v. The State, 2 Texas Ct. App., 62; 1 Bish. Crim. Proc., 3 ed., sec. 443.)
On the trial of this case the evidence established that, at the date of the alleged offense, the prosecutrix was over the age of ten years. In view of this testimony the defendant’s counsel requested the court to instruct the jury as follows: “You are instructed that in this case the defendant stands charged by indictment with the offense of rape upon a child under the age of ten years, and you are further instructed that if you believe from the evidence that Leona Harris, at the time of the commission of the offense, if any, was over the age of ten years, then and in that event you will find the defendant not guilty.” The learned trial judge explains his refusal of this special charge as follows: “ The above special instruction is refused because the indictment alleges that the offense was committed by means of ‘ force and threats ’ on the part of the defendant, and the allegation of age of the prosecutrix, or injured female, is not of that descriptive character which requires corresponding proof, the State having proved force and threats.”
The question arises, was the view taken by the court correct? Having alleged the age to be under ten years, was the State compelled to prove that the prosecutrix was under ten, and, the proof showing that she was over ten, was the variance between the allegation and proof material and fatal to the conviction ? It is clear from the allegation in the indictment that, if we eliminate the words “and under the age of ten years,” a sufficiently specific and distinct statutory offense of rape is charged. These words can be treated as surplusage and eliminated if they are not essential to the descriptive identity of the offense. The rule is: “Whenever there is a necessary allegation which can not be rejected, yet the pleader makes it unnecessarily minute in the way of description, the proof must satisfy the description as well as the main part, since the one is essential to the identity of the other.” (Warrington v. The State, 1 Texas Ct. App., 168; Withers v. The State, 21 Texas Ct. App., 210, and authorities there cited.)
As we have before remarked, we have but one statutory definition of rape. This statute, however, embraces two classes, dependent upon the facts or elements entering into them, viz., rape upon “a woman,” and rape upon “a female under ten years of age.” When the offense is alleged to have been committed [328]*328upon “a female under ten years of age,” it is unnecessary to allege that the carnal knowledge was obtained by means of “force, threats or fraud, and without her consent,” because the carnal knowledge of itself constitutes the offense in such a case, and the allegation and proof of age is the only essential element in such an offense. If, on the other hand, the indictment charges a rape committed by “force, threats or fraud, and without consent,” then, indeed, such an allegation would be sufficient also to charge a rape committed upon a female, no matter whether under or over ten years of age. But in such a case it would be essential to the validity of a conviction to prove that it was committed “by force, threats or fraud, and without consent,” even though the injured female was under ten years of age. (Moore v. The State, 20 Texas Ct. App., 275.) An allegation of age, then, only becomes essential when it is proposed to show a carnal connection with a female under ten, independent of the other statutory elements constituting the offense. In this aspect of the crime, only, age becomes an essential element of the offense.
Mr. Bishop says: “Though it is a separate offense to have carnal knowledge of a consenting girl under ten years of age, still it is rape to force her, the same as if she was over ten.”) (2 Bish. Crim. Proc., sec. 954.)
A similar question to the one under consideration was ably discussed in Mobley v. The State, 46 Mississippi, 501, and the court says: “As already stated, a woman of any age may be the subject of this crime. If the female be under ten, this fact might be a defense upon the trial under an indictment for the substantive offense; but in the latter case, as we have before shown, the prosecution need neither aver nor prove the age. Proof of the carnal knowledge of a female, forcibly and against her will, sustains the charge, and hence the age, even if averred, need not be proved (Swinney v. The State, 8 Smedes & Marsh., 576), because not an ingredient of the crime. This case is unlike those where an unnecessary averment becomes material, as a description of the person of the accused, the place or locality of the crime, or the property stolen, as in Dick v. The State, 30 Mississippi, 631, John v. The State, 24 Id., 569, and the cases therein cited, from which the one at bar is wholly distinguishable. In cases like those, the unnecessary having become material, it must be sustained by proof, though in such cases slight proof of those averments is sufficient; while, in the case at bar, [329]*329the age is in no way material, or in any way identified with the crime. In The State v. Anderson, 19 Missouri, 241, which was the trial of a negro upon an indictment for an attempt to ravish a white female, the jury were permitted to find the color and race of the accused, and the sex of the prosecutrix, from seeing these parties on trial, and proof that the accused was a slave, and this was sustained on error; but the rule therein adopted need not be invoked in the case at bar, even if approved.”
Opinion delivered May 4, 1887.
In O’Meara v. The State, 17 Ohio State Reports, 518, it is stated that “the age of the female is, therefore, immaterial, except so far as it may tend to show that the act was forcible and against her will. It is mere matter of evidence, and not of allegation, in the indictment. It is only necessary to allege the age when the indictment is for carnally knowing and abusing with the child’s consent.” (Greer v. The State, 50 Ind., 276; s. c., 1 Amer. Crim. Rep., Hawley, 643.)
Now if age is a non-essential element where force, threats or fraud, or non-consent are relied upon, it would seem that an allegation of age would not in any manner be descriptive of an offense thus charged, and could thus properly be treated as surplusage. And if age is immaterial where the crime has been committed by force, threats or fraud and without consent, certainly there can be no variance in the proof where the age has been unnecessarily alleged, and the other essential elements have been established as charged in the indictment. We are of the opinion that the court did not err in the charge given, nor in refusing the defendant’s special requested instruction as above set out.
We do not, however, believe the evidence in this case sufficiently establishes the guilt of this defendant. When examined by the medical expert, the prosecutrix was found to be afflicted with syphilis, and appeard to have been so afflicted for about three weeks. Doctor Sneed said that he had examined defendant, and he found no indications that the defendant had ever had syphilis. But, independent of this strong negative testimony, the other evidence in the case fails to impress us with that conclusive force and cogency requisite to establish satisfactorily the crime of which defendant has been found guilty.
Because the evidence is insufficient to support the verdict and judgment, the judgment is reversed and the cause remanded.
Reversed and remanded.