The opinion of the court was delivered by
Walker, Chancellor.
In this case the jury found the defendant "'guilty in manner and form as he stands charged.” This was a general verdict of guilty upon all the counts of the indictment. They were six in number — first, that the defendant, George D. Huggins, in and upon one Viola Fallis, violently and feloniously did make an assault, and her, the said Viola, then and there forcibly and against her will feloniously did ravish and carnally know contrary to the form of the statute and against the peace of the state, &e.; second, that the defendant, being a male person of the age of sixteen years and over, one Viola Fallis, a woman child over the age of twelve years and under the age of sixteen years, to wit, of the age of fourteen years, did unlawfully and carnally know and abuse without her consent, &c.; third, that the defendant, being a male person of the age of sixteen years and over, one Viola Fallis, a woman child over the age of twelve years and under the age of sixteen years, to wit, of the age of fourteen years, did unlawfully and carnally know and abuse with her consent, &e.; fourth, that the defendant, in and upon one Viola Fallis, a woman child under the age of sixteen years, to wit, of the age of fourteen years, feloniously did make an assault with intent her the said Viola Fallis then and there feloniously to unlawfully and carnally know and abuse without her consent, &c.; fifth, that the defendant, in and upon one [256]*256Viola Pallis, a woman child under the age of sixteen years, to wit, of the age of fourteen years, feloniously did make an assault with intent her the said Viola Pallis then and there feloniously to unlawfully and carnally know and abuse with her consent, &c.; sixth, that the defendant did unlawfully and indecently make an assault in and upon one Viola Pallis, and did then and there unlawfully and indecently and against the will of the said Viola Pallis pull up the clothes of the said Viola Pallis and placed the private parts of the said George D. Huggins against the private parts of the said Viola Pallis, and did then and there otherwise ill use and ill treat her, &e.
This ease was reviewed in the Supreme Court on error to the Burlington' Quarter Sessions and the judgment Vas affirmed. State v. Huggins, 54 Vroom 43.
It is argued to us that there was no evidence before the jury of the offence of common law rape which is charged in the first count of the indictment, and that, therefore, the trial court should have granted the motion of defendant’s counsel to direct a verdict of not guilty on that count at the close of the case. To this we agree; but hold the error to be harmless for reasons hereafter to be stated.
If any reason existed for compelling the prosecutor to elect on which, of the other counts he would proceed.to trial no motion was made in that behalf, and the whole case was submitted to the jury without objection save as to the motion to acquit on the count for rape.
Rape at common law is defined by Blackstone as “the carnal knowledge of a woman forcibly and against her will.” 4 Bl. Com. 210. a
Our statute defining rape and carnal abuse, and providing for their punishment (Comp. Stat., p. 1783, § 115), as it stood at the time of-the defendant’s crime, and as it still stands, reads as follows:
“Any person who shall have carnal knowledge of a woman forcibly against her will, or shall aid, abet, counsel, hire, cause or procure any person or persons to commit the said offence, or who being of the age of sixteen or over, shall un[257]*257lawfully and carnally abuse a woman child under the age of twelve years, with or without her consent, shall be guilty of a high misdemeanor, and punished by a fine not exceeding five thousand dollars, or imprisonment at hard labor not exceeding thirty years, or both, or who being of the age of sixteen or over, shall unlawfully and carnally abuse a woman child over the age of twelve years and under the age of sixteen years, with or without her consent, shall he guilty of a high misdemeanor, and punished by a fine not exceeding two thousand dollars, or imprisonment at hard labor not exceeding fifteen years, or both.”
While there was no testimony showing that any resistance was made by the girl in the case at bar, nevertheless, assuming that she consented, although she says she did not, being only fourteen years of age and therefore incapable in law of giving consent, the crime was that of carnal abuse — statutory rape so called. It liad in it one element of rape, namely, the use of force in the act which was accomplished against her will, for she had no will to oppose to her ravisher’s designs. We say “force,” because in Farrell v. State, 25 Vroom 416, the Supreme Court observed (at p. 419), speaking of this crime: “The offence could not be committed without an assault upon the person of the female.” And such an assault upon the person certainly presupposes force, and differs from a simple assault disassociated from a battery. The statute renders the female child incapable of giving consent.
One difference between the two offences of common law rape and carnal .abuse described in the statute lies in the punishment. For the former the penalty denounced is a fine not exceeding $5,000 or imprisonment at hard labor not exceeding thirty years, or both; for the latter a fine not exceeding $2,000 or imprisonment at hard labor not exceeding fifteen years, or both. The sentence of the court in this case was that the defendant “be imprisoned at hard labor in the state prison for his offence aforesaid for a term of not less than five years and not more than thirty years, and further stand committed until the costs of prosecution are paid.”
[258]*258That the defendant was guilty of the crime of carnal abuse, commonly called statutory rape, is clear. And the general verdict of guilty upon all counts is certainly a conviction on the count of the indictment charging that offence.
Where there are several counts in an indictment, each charging a distinct crime, a general verdict of guilty amounts to a conviction of each separate offence, and even if the verdict cannot be supported as to one or more of the crimes charged, it would be an anomaly and a grave defect of criminal justice, if an entire reversal were necessitated, because, while conviction on one or more of the counts was legal, there nevertheless had to be a reversal on another or other counts. Such a conviction will be upheld if there be a good count describing the offence.
On an indictment containing several counts, some good and others bad, a general verdict of guilty on all the counts will be upheld if there is a single good count to support it. See Mead v. State, 24 Vroom 601. And a conviction upon all of several good counts must certainty be as valid as to a count upon which the conviction can be sustained, as it would be where there were good and bad counts, and the conviction was to be supported on a single good count. State v. McCauless, 9 Ired. (N. C.) 375, is an authority the other way, and there may be others, but, so far as the doctrine here enunciated is not in accord with adjudications in other states, we decline to follow them.
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The opinion of the court was delivered by
Walker, Chancellor.
In this case the jury found the defendant "'guilty in manner and form as he stands charged.” This was a general verdict of guilty upon all the counts of the indictment. They were six in number — first, that the defendant, George D. Huggins, in and upon one Viola Fallis, violently and feloniously did make an assault, and her, the said Viola, then and there forcibly and against her will feloniously did ravish and carnally know contrary to the form of the statute and against the peace of the state, &e.; second, that the defendant, being a male person of the age of sixteen years and over, one Viola Fallis, a woman child over the age of twelve years and under the age of sixteen years, to wit, of the age of fourteen years, did unlawfully and carnally know and abuse without her consent, &c.; third, that the defendant, being a male person of the age of sixteen years and over, one Viola Fallis, a woman child over the age of twelve years and under the age of sixteen years, to wit, of the age of fourteen years, did unlawfully and carnally know and abuse with her consent, &e.; fourth, that the defendant, in and upon one Viola Fallis, a woman child under the age of sixteen years, to wit, of the age of fourteen years, feloniously did make an assault with intent her the said Viola Fallis then and there feloniously to unlawfully and carnally know and abuse without her consent, &c.; fifth, that the defendant, in and upon one [256]*256Viola Pallis, a woman child under the age of sixteen years, to wit, of the age of fourteen years, feloniously did make an assault with intent her the said Viola Pallis then and there feloniously to unlawfully and carnally know and abuse with her consent, &c.; sixth, that the defendant did unlawfully and indecently make an assault in and upon one Viola Pallis, and did then and there unlawfully and indecently and against the will of the said Viola Pallis pull up the clothes of the said Viola Pallis and placed the private parts of the said George D. Huggins against the private parts of the said Viola Pallis, and did then and there otherwise ill use and ill treat her, &e.
This ease was reviewed in the Supreme Court on error to the Burlington' Quarter Sessions and the judgment Vas affirmed. State v. Huggins, 54 Vroom 43.
It is argued to us that there was no evidence before the jury of the offence of common law rape which is charged in the first count of the indictment, and that, therefore, the trial court should have granted the motion of defendant’s counsel to direct a verdict of not guilty on that count at the close of the case. To this we agree; but hold the error to be harmless for reasons hereafter to be stated.
If any reason existed for compelling the prosecutor to elect on which, of the other counts he would proceed.to trial no motion was made in that behalf, and the whole case was submitted to the jury without objection save as to the motion to acquit on the count for rape.
Rape at common law is defined by Blackstone as “the carnal knowledge of a woman forcibly and against her will.” 4 Bl. Com. 210. a
Our statute defining rape and carnal abuse, and providing for their punishment (Comp. Stat., p. 1783, § 115), as it stood at the time of-the defendant’s crime, and as it still stands, reads as follows:
“Any person who shall have carnal knowledge of a woman forcibly against her will, or shall aid, abet, counsel, hire, cause or procure any person or persons to commit the said offence, or who being of the age of sixteen or over, shall un[257]*257lawfully and carnally abuse a woman child under the age of twelve years, with or without her consent, shall be guilty of a high misdemeanor, and punished by a fine not exceeding five thousand dollars, or imprisonment at hard labor not exceeding thirty years, or both, or who being of the age of sixteen or over, shall unlawfully and carnally abuse a woman child over the age of twelve years and under the age of sixteen years, with or without her consent, shall he guilty of a high misdemeanor, and punished by a fine not exceeding two thousand dollars, or imprisonment at hard labor not exceeding fifteen years, or both.”
While there was no testimony showing that any resistance was made by the girl in the case at bar, nevertheless, assuming that she consented, although she says she did not, being only fourteen years of age and therefore incapable in law of giving consent, the crime was that of carnal abuse — statutory rape so called. It liad in it one element of rape, namely, the use of force in the act which was accomplished against her will, for she had no will to oppose to her ravisher’s designs. We say “force,” because in Farrell v. State, 25 Vroom 416, the Supreme Court observed (at p. 419), speaking of this crime: “The offence could not be committed without an assault upon the person of the female.” And such an assault upon the person certainly presupposes force, and differs from a simple assault disassociated from a battery. The statute renders the female child incapable of giving consent.
One difference between the two offences of common law rape and carnal .abuse described in the statute lies in the punishment. For the former the penalty denounced is a fine not exceeding $5,000 or imprisonment at hard labor not exceeding thirty years, or both; for the latter a fine not exceeding $2,000 or imprisonment at hard labor not exceeding fifteen years, or both. The sentence of the court in this case was that the defendant “be imprisoned at hard labor in the state prison for his offence aforesaid for a term of not less than five years and not more than thirty years, and further stand committed until the costs of prosecution are paid.”
[258]*258That the defendant was guilty of the crime of carnal abuse, commonly called statutory rape, is clear. And the general verdict of guilty upon all counts is certainly a conviction on the count of the indictment charging that offence.
Where there are several counts in an indictment, each charging a distinct crime, a general verdict of guilty amounts to a conviction of each separate offence, and even if the verdict cannot be supported as to one or more of the crimes charged, it would be an anomaly and a grave defect of criminal justice, if an entire reversal were necessitated, because, while conviction on one or more of the counts was legal, there nevertheless had to be a reversal on another or other counts. Such a conviction will be upheld if there be a good count describing the offence.
On an indictment containing several counts, some good and others bad, a general verdict of guilty on all the counts will be upheld if there is a single good count to support it. See Mead v. State, 24 Vroom 601. And a conviction upon all of several good counts must certainty be as valid as to a count upon which the conviction can be sustained, as it would be where there were good and bad counts, and the conviction was to be supported on a single good count. State v. McCauless, 9 Ired. (N. C.) 375, is an authority the other way, and there may be others, but, so far as the doctrine here enunciated is not in accord with adjudications in other states, we decline to follow them.
Tt is suggested that the result reached in this case would, on an indictment for murder, followed by a conviction of murder in the first degree, which was erroneous for legal error in the trial, require us’to sustain the conviction as one for murder in the second degree or manslaughter, if the evidence warranted the conviction for either of those offences, because in legal effect an indictment for murder contains a count for murder in the second degree and the crime of manslaughter is necessarily included in the higher one charged in the indictment. But the suggestion is not well founded, for the reason that on an indictment charging murder, and an erroneous verdict of murder in the first degree, the court could [259]*259not say that the jury found the defendant guilty of murder in the second degree or manslaughter, when in fact they did neither, and, besides, the court would be powerless to presume that they would have convicted of one or the other, second degree or manslaughter, and, therefore, upon a reversal, there would have to be a venire de novo. But, if an indictment for murder (which is always the same: — for murder generally— and requires the jury to find the degree) should contain a count for manslaughter and there was a general verdict of: guilty as charged, and the judgment of guilty of murder in the first degree had to be reversed, the conviction of manslaughter, if supported by the record, could and should be sustained.
The second and third counts charge the defendant, one with unlawfully and carnally knowing and abusing the girl without her consent, and the other the same offence with her consent. Now, “carnal abuse” is an act of debauchery of the female sexual organs by those of the male which does not amount to penetration, while carnal knowledge connotes penetration. State v. Hummer, 44 Vroom 714, 718.
In the case at bar there was evidence tending to show penetration had been accomplished, and the Supreme Court so held; but, whether so or not, there was certainly evidence of “carnal abuse.” In fact the offence commonly called statutory rape consists of camal abuse and not of carnal knowledge, which denotes penetration.
Although the evidence doubtless did not warrant the conviction of the defendant for the crime of common law rape, nevertheless, no prejudicial error resulted to him in the refusal of the trial court to direct his acquittal upon that charge, because there was evidence amply justifying the conviction for carnal abuse, and the prosecution was entitled to go' (o the jury on the count charging that offence. The general verdict of guilty is supportable on that count.
A prejudicial error, however, supervened upon the record of conviction, and it lies in the sentence which was passed upon the defendant. That sentence was one for rape at common law, namely, thirty years as a maximum penalty, instead of [260]*260one for carnal abuse, namely, fifteen years as a maximum penalty. This point is not made before us by any exception or specification of cause for reversal, nor was it made in the Supreme Court, but it may be said to be involved in the consideration of the case on error, because, in disregarding the conviction on the first count as involved in the general verdict, the defendant cannot, of course, be punished by a sentence which imposes a penalty in excess of that visited upon the crime for which he stands lawfully convicted, namely, carnal abuse. Pormerly in England and in this state an excessive sentence rendered the judgment illegal and called for a reversal for want of power in the court above to either correct the sentence or remand the case to the court below for that purpose. See State v. Gray, 8 Vroom 368; Roop v. State, 29 Id. 487. To remedy this defect section 144 of the Criminal Procedure act was passed in 1898 (Comp. Stat., p. 1867), which provides as follows:
“Whenever a final judgment in any criminal case shall be reversed upon a writ of error, on account of error in thfe sentence, the court in which such reversal was had may render such judgment therein as should have been rendered, or may remand the case for that purpose to the court before which the conviction was had.”
It is, therefore, perfeetty obvious that, if this court be required to reverse on account of error in the .sentence only, it has the power to render such judgment as should have been rendered, or to remand the case for proper sentence to the trial court, so that the anomaly of a new trial to attain that purpose may be avoided, one which might prove entirely abortive by reason of a possible acquittal on tire same evidence which .satisfied a former jury of defendant's guilt.
The term which the prisoner in this case was sentenced to serve is undoubtedly a part of the judgment, and in that respect this case is unlike the case of Bindernagle v. State, 32 Vroom 259, decided in this court in the year 1897. That decision doubtless caused the legislature of the next year (1898) to write section 144 into the revised Criminal Procedure act. In the Bindernagle case the defendant was sentenced to im[261]*261prisonment at hard labor in the slate prison for the term of one year. By the then existing act of the legislature a sentence of imprisonment for over six and not exceeding eighteen months in any county having a penitentiary was made to be served in the penitentiary instead of the state prison, and this court held that the provision for imprisonment in the state prison formed no part of the judgment proper and might be annulled on error without impairing the judgment itself.' In other words, the legislature having provided that a sentence of the duration imposed by the judge in the Bindernagle case was to be served only in a particular penal institution, namely, a county penitentiary, the sentence that the time be served in an institution other than that provided by law was no part of the judgment, that judgment comprehended the term of imprisonment only, and the statute provided the place of imprisonment. Now, in this ease, the term of imprisonment, namely, thirty years, is part of the judgment of the court below, and is excessive and illegal as applied to the offence for which the defendant, was properly convicted, and while we are required to reverse the judgment removed here on error because of its erroneous character, nevertheless, under section 114 of the Criminal Procedure act, supra, we may render such judgment in this court as should have been rendered, or remand the ease for that purpose to the Burlington Quarter Sessions before which the conviction was had. The prosecutor may move for either form of relief as he may elect.
The questions dealt with by the Supreme Court were, in our judgment, properly decided; and the questions raised there which were not noticed, and which have been raised before this court, we deem to be without merit.