Ellis, J.
George W. Russell was indicted by the Grand Jury of Duval County for rape. The indictment, omitting venue, title and signature of State Attorney, is as follows:
“In the Name and By the Authority of the State of Florida:
“The Grand Jurors of the State of Florida-, empanelled and sworn to inquire and true presentment make in and for the body of the County of Duval, upon their oath do. present that George W. Russell, late of the County of Duval and State of Florida, on the 1st day of November, in the year of our Lord one thousand nine hundred and fifteen in the Comity and State aforesaid, in and upon one Pauline Stearn an assault did make, and her the said Pauline Stearn did then and there ravish [238]*238and carnally know, by force and against the will of her the said Pauline Stearn; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Florida.”
A capias issued upon the filing of the indictment and Russell was taken into custody and incarcerated in the county jail to await trial. Upon a writ of Habeas Corpus applied for by him to admit him to bail the court denied the bail and remanded Russell to the custody of the sheriff of Duval County to be safely kept until otherwise directed by some court of competent jurisdiction. To this order Russell took writ of error.
Rape is a capital offense in this State. Sec. 3221 Gen. Stats. of Florida.
Section 9 of the Declaration of Rights of the Constitution of Florida provides that “All persons shall be bailable by sufficient sureties except for capital offenses, where the proof is evident or the presumption great.”
Section 3221 of the General Statutes of Florida is as follows: “Whoever ravishes and carnally knows a female of the ag'e of ten years or more, by force and against her will, or unlawfully or carnally knows and abuses a female child under the age of ten years, shall be punished by death or by imprisonment in the State prison for life. It shall not be necessary to prove the actual emission of seed, but the crime shall be deemed complete upon proof of penetration only.”
The offense of rape is one defined by the statute and the charg'e in the indictment must be in the language of the statute or language of equivalent import. The circumstances which constitute the definition of the offense denounced by the statute must be stated in the indictment. Nothing will be taken by intendment. The de[239]*239fendant should be brought within all the material words of the statute. See Humphreys v. State, 17 Fla. 381; Barber v. State, 13 Fla. 675; Cook v. State, 25 Fla. 698, 6 South. Rep. 451.
Section 3221 defines two phases of the crime of rape, one where the crime is committed upon a female child of the age of ten years or more by force and against her will, the other where the offense is committed upon a female child under the age of ten years. In the one case the offense cannot be proved except by a showing upon the part of the State that the offense was committed by force and against the will of the female, while in the other case the offense is established by showing that the defendant had carnal knowledge of the child and that she was under ten years of age. In the latter case the element of force or consent of the child is immaterial. See Schang v. State, 43 Fla. 561, 31 South. Rep. 346; Wilson v. State, 50 Fla. 164, 39 South. Rep. 471. The indictment in this case it will be seen charges the offense of rape under that phase of the crime where the act is committed upon a child ten years of age or more and where the elements of force and consent are material. There is nothing in the record to show that the person upon whom the offense was alleged to have been committed was not in possession of her mental and physical faculties, nor that she was of an unenlightened mind, but being ten years of age or more she was presumed to be enlightened.
In the case of Barker v. State, 40 Fla. 178, 24 South. Rep. 69, this court held that the law presumes a female under the age of ten years can not consent to carnal intercourse, but above that age she may, but that in determining whether or not she does consent when over ten, [240]*240her age may be considered and her knowledge as to such matters. See also Hollis v. State, 27 Fla. 387, 9 South. Rep. 67.
The court below did not consider the girl to be of such tender years as to allow the State Attorney to propound to her grossly leading questions in her examination as a witness, and her own testimony is not of such character as to show that the proof was evident and the presumption great that the act was accomplished by force and against her consent. ' The manner of the commission of this alleged offense, the circumstances, time and place were all material in this investigation as bearing upon the question of resistance and consent. ’
In a proceeding of this character the indictment is not conclusive of the defendant’s guilt, but the burden of proof is upon the accused to show that the proof is not evident and the presumption is not great. See Finch v. State, 15 Fla. 633; Holley v. State, Ibid. 688; Benjamin v. State, 25 Fla. 675, 6 South. Rep. 433; Rigdon v. State, 41 Fla. 308, 26 South. Rep. 711.
The question is not whether the evidence adduced on an application for bail is sufficient to establish guilt beyond a reasonable doubt, but whether the evidence is sufficient to' establish that degree of proof where the judge to whom the application is made may say that guilt is evident or the presumption is great, which is a greater degree of proof than that establishing guilt merely to the exclusion of a reasonable doubt.
The word “Evident” is defined by Webster as “clear to the understanding’ and satisfactory to the judgment.” Synonyms : “Manifest, plain, clear, obvious, conclusive.” The word “Manifest” is defined as follows: “to put beyond question of doubt.” In-a trial this degree of [241]*241proof is not required, for it not infrequently happens that upon a conviction the court will refuse to grant a new trial because there is evidence to support the verdict although to his mind guilt may not have been established to the point of being manifest, obvious, beyond a question of doubt, yet it is to the court to whom application for bail is made, and his judgment is invoked as to the degree of proof established by the evidence, and not what a petit jury not yet empanelled may possibly decide as to the probative force of the evidence.
If, therefore, when an application is made to the court for bail in a capital case after indictment, the question for him is whether, considering the indictment, and all the evidence for the State, and that adduced in behalf of the defendant, the proof of guilt is evident or the presumption raised thereby is great.
Under the common law practice bail was generally refused after indictment, because the court could not know on what evidence the grand jury acted, and by a legal fiction the proof thus offered was treated pro forma as “evident” and the presumption thereby arising “great.” 3 R. C. L. p. 14. But under our constitution and the decisions of this court the indictment is not regarded as conclusive. Rigdon v. State, supra; Gainey v. State, 42 Fla. 607, 29 South. Rep. 405. In which latter case the court held that “where the proofs in such a case go no further than to estabilsh a probability
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Ellis, J.
George W. Russell was indicted by the Grand Jury of Duval County for rape. The indictment, omitting venue, title and signature of State Attorney, is as follows:
“In the Name and By the Authority of the State of Florida:
“The Grand Jurors of the State of Florida-, empanelled and sworn to inquire and true presentment make in and for the body of the County of Duval, upon their oath do. present that George W. Russell, late of the County of Duval and State of Florida, on the 1st day of November, in the year of our Lord one thousand nine hundred and fifteen in the Comity and State aforesaid, in and upon one Pauline Stearn an assault did make, and her the said Pauline Stearn did then and there ravish [238]*238and carnally know, by force and against the will of her the said Pauline Stearn; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Florida.”
A capias issued upon the filing of the indictment and Russell was taken into custody and incarcerated in the county jail to await trial. Upon a writ of Habeas Corpus applied for by him to admit him to bail the court denied the bail and remanded Russell to the custody of the sheriff of Duval County to be safely kept until otherwise directed by some court of competent jurisdiction. To this order Russell took writ of error.
Rape is a capital offense in this State. Sec. 3221 Gen. Stats. of Florida.
Section 9 of the Declaration of Rights of the Constitution of Florida provides that “All persons shall be bailable by sufficient sureties except for capital offenses, where the proof is evident or the presumption great.”
Section 3221 of the General Statutes of Florida is as follows: “Whoever ravishes and carnally knows a female of the ag'e of ten years or more, by force and against her will, or unlawfully or carnally knows and abuses a female child under the age of ten years, shall be punished by death or by imprisonment in the State prison for life. It shall not be necessary to prove the actual emission of seed, but the crime shall be deemed complete upon proof of penetration only.”
The offense of rape is one defined by the statute and the charg'e in the indictment must be in the language of the statute or language of equivalent import. The circumstances which constitute the definition of the offense denounced by the statute must be stated in the indictment. Nothing will be taken by intendment. The de[239]*239fendant should be brought within all the material words of the statute. See Humphreys v. State, 17 Fla. 381; Barber v. State, 13 Fla. 675; Cook v. State, 25 Fla. 698, 6 South. Rep. 451.
Section 3221 defines two phases of the crime of rape, one where the crime is committed upon a female child of the age of ten years or more by force and against her will, the other where the offense is committed upon a female child under the age of ten years. In the one case the offense cannot be proved except by a showing upon the part of the State that the offense was committed by force and against the will of the female, while in the other case the offense is established by showing that the defendant had carnal knowledge of the child and that she was under ten years of age. In the latter case the element of force or consent of the child is immaterial. See Schang v. State, 43 Fla. 561, 31 South. Rep. 346; Wilson v. State, 50 Fla. 164, 39 South. Rep. 471. The indictment in this case it will be seen charges the offense of rape under that phase of the crime where the act is committed upon a child ten years of age or more and where the elements of force and consent are material. There is nothing in the record to show that the person upon whom the offense was alleged to have been committed was not in possession of her mental and physical faculties, nor that she was of an unenlightened mind, but being ten years of age or more she was presumed to be enlightened.
In the case of Barker v. State, 40 Fla. 178, 24 South. Rep. 69, this court held that the law presumes a female under the age of ten years can not consent to carnal intercourse, but above that age she may, but that in determining whether or not she does consent when over ten, [240]*240her age may be considered and her knowledge as to such matters. See also Hollis v. State, 27 Fla. 387, 9 South. Rep. 67.
The court below did not consider the girl to be of such tender years as to allow the State Attorney to propound to her grossly leading questions in her examination as a witness, and her own testimony is not of such character as to show that the proof was evident and the presumption great that the act was accomplished by force and against her consent. ' The manner of the commission of this alleged offense, the circumstances, time and place were all material in this investigation as bearing upon the question of resistance and consent. ’
In a proceeding of this character the indictment is not conclusive of the defendant’s guilt, but the burden of proof is upon the accused to show that the proof is not evident and the presumption is not great. See Finch v. State, 15 Fla. 633; Holley v. State, Ibid. 688; Benjamin v. State, 25 Fla. 675, 6 South. Rep. 433; Rigdon v. State, 41 Fla. 308, 26 South. Rep. 711.
The question is not whether the evidence adduced on an application for bail is sufficient to establish guilt beyond a reasonable doubt, but whether the evidence is sufficient to' establish that degree of proof where the judge to whom the application is made may say that guilt is evident or the presumption is great, which is a greater degree of proof than that establishing guilt merely to the exclusion of a reasonable doubt.
The word “Evident” is defined by Webster as “clear to the understanding’ and satisfactory to the judgment.” Synonyms : “Manifest, plain, clear, obvious, conclusive.” The word “Manifest” is defined as follows: “to put beyond question of doubt.” In-a trial this degree of [241]*241proof is not required, for it not infrequently happens that upon a conviction the court will refuse to grant a new trial because there is evidence to support the verdict although to his mind guilt may not have been established to the point of being manifest, obvious, beyond a question of doubt, yet it is to the court to whom application for bail is made, and his judgment is invoked as to the degree of proof established by the evidence, and not what a petit jury not yet empanelled may possibly decide as to the probative force of the evidence.
If, therefore, when an application is made to the court for bail in a capital case after indictment, the question for him is whether, considering the indictment, and all the evidence for the State, and that adduced in behalf of the defendant, the proof of guilt is evident or the presumption raised thereby is great.
Under the common law practice bail was generally refused after indictment, because the court could not know on what evidence the grand jury acted, and by a legal fiction the proof thus offered was treated pro forma as “evident” and the presumption thereby arising “great.” 3 R. C. L. p. 14. But under our constitution and the decisions of this court the indictment is not regarded as conclusive. Rigdon v. State, supra; Gainey v. State, 42 Fla. 607, 29 South. Rep. 405. In which latter case the court held that “where the proofs in such a case go no further than to estabilsh a probability of guilt, they are not sufficient either to sustain a verdict of conviction or to call for a denial of bail.” In that case application was made for bail after indictment for a capital crime.
The English rule and that applied by Chief Justice Marshall in “Burr’s Trial,” denying- bail after indict[242]*242ment by a grand, jury does not obtain, as has been shown, in this State.
The indictment is merely a strong prima facie showing that the accused is rightly held in custody and hot entitled to bail. Rigdon v. State, supra. But the Grand Jury does not determine, nor is it clothed with the power to decide the question of bail in any case. The proceedings of a Grand Jury are secret and wholly ex parte, evidence for the State being alone received. The accused is not present, he cannot be. represented by counsel, he is not heard upon the legality or probative force of the evidence adduced. The proceedings are largely directed by the State Attorney, who exercises some influence in the selection of witnesses and to some extent, perhaps, directs the finding's. It would seem that in view of these conditions, and the recognized policy of the law to afford every one accused of crime the-full opportunity to prepare his defense, that it is quite sufficient to treat the indictment as merely prima facie evidence of the truthfulness of the charge, upon an application for bail.
It was said in the case of Thrasher v. State, 26 Fla. 526, 7 South. Rep. 847, that it was a safe rule “to refuse bail in all cases where a judge would sustain a capital conviction if pronounced by a jury on such evidence of guilt as is exhibited on the hearing for bail; and where the evidence is of less efficacy to admit .to bail.” As to the latter part of the court’s language there can be no question as to its correctness, because if there is no evidence whatever of the defendant’s guilt, of course he should be admitted to bail; but it does not follow that because a court admits the applicant to bail it thereby decides that upon the evidence presented a jury should not convict the defendant of a capital offense, and if con[243]*243victed the verdict would not be permitted to stand. As pointed out the evidence may be sufficient to satisfy a jury beyond a reasonable doubt, there may be sufficient evidence to support such a verdict so that the trial judge would refuse to set it aside, although to his mind the evidence did not establish such degree of proof as that, he could say guilt was evident, clear, conclusive beyond question of doubt. It was not intended to substitute the judgment of the court for that of the jury, and to use an order admitting the defendant to bail as an adjudication of his innocence.
The language used in the Thrasher case was used in the case of Commonwealth v. Keeper of Prison, 2 Ashmead. (Pa.) 227, in which the court admitted the applicant to bail applying the latter clause. The court could find in no part of the testimony any ground for a fair and reasonable presumption that the defendant ever intended to take the life of the deceased.
The case of Street v. State, 43 Miss. 1, was cited in the Thrasher case in support of the rule. That case followed a rule announced in Commonwealth v. Keeper of Prison, but in a prior case decided by the Supreme Court of Mississippi, Ex parte Wray, 30 Miss. 673, the court announced the rule that “if a well founded doubt (of guilt) can ever be entertained, then the proof cannot be said to be evident nor the presumption great, and in such case bail must be granted.” And in the case of Ex Parte Bridewell, 57 Miss. 39, the court declined bo follow the rule announced in the case of Street v. State, 43 Miss. 1, and criticised the rule announced in 2 Ashmead 227, in the following language: “This rule, we think, is as plainly violative of the organic law, on the other, extreme, as the remark of the High Court of Errors and Appeals [244]*244in the cases above cited. A verdict of conviction where no error of law has intervened will never be set aside unless manifestly wrong or as is sometimes said, if there be any evidence to support it. To say that bail will only be granted where there is no evidence showing guilt, or where the proof of guilt is so slight upon the whole testimony that a conviction would be manifestly wrong, is plainly inconsistent with the constitutional requirement that it shall be granted in all cases except where the proof is evident or the presumption great.” The Pennsylvania rule which seems to have been followed in the Thrasher case fails to give due effect to a verdict of conviction. “It overlooks the vast change it effects in the attitude of the party.”
The only witness for the State whose name appears upon the back of the indictment in this case was that of the prosecutrix, Pearl Stearns, and her testimony carries with it its own contradictions and discrepancies, and while this court does not undertake to say in this proceeding that 'the evidence would not sustain a conviction of guilt, we think that the plaintiff in error met the burden of showing that the proof was not evident and the presumption was not great of the capital offense charged.
The order of the court remanding the accused to the custody of the sheriff is reversed and the court is directed to admit him to bail in such sum as it deems necessary to secure his presence at the trial.
Taylor, C. and ShackLeford, Cockrell and Whitfield, JJ., concur.