Opinion, per WANAMAKER, J.

pendent crimes. Section 12413, General Code, the rape statute, is classified in the Crimes Act under Chapter 3, Title I, Part Fourth, as "offenses against the person." It follows very closely the various sections of the statute relating to the different species of homicide, the major crime against the person, while the incest statute, Section 13023, General Code, is in an entirely different class of crimes. It is found in Chapter 12, Title I, Part Fourth, and is classified in "offenses against chastity."

The doctrine of inferior degrees has never been applied by our courts to crimes which are inherently and essentially so different in their nature, character and atrocity as to belong to an entirely different class of crimes.

This doctrine was applied by the supreme court to a charge of pocket-picking, in State v. Whitten, 82 Ohio St., 174, the syllabus of which reads:

"The defendant in error was being tried on an indictment for pocket-picking, which act is made criminal by the provisions of Section 6818, Revised Statutes, and he requested the court to charge the jury as follows: 'You may find the defendant not guilty of the offense charged, but guilty of petit larceny.' The court refused to so charge. Held: not error."

Price, J., in the opinion, at page 182, uses this language:

"It is argued for this special charge, that stealing or larceny is an element in the crime of pocketpicking, and an offense of a lesser grade, meriting less severe penalty. The first part of the proposi

Opinion, per WANAMAKER, J.

tion may be true, but the element of stealing is in many other distinct offenses, such as robbery, and burglary. See Sections 574 and 575, McClain on Criminal Law. But this furnishes no sufficient justification for the request in the present case, if the charge in the indictment is an offense distinct from and independent of the crime of larceny, and we find that it is so independent and different in character."

Likewise, in discussing the class of crimes, it was noted in the opinion by Judge Price that the crime of pocket-picking was classified in Chapter 3, relating to "Crimes against the person," while larceny was classified in a separate chapter, then Chapter 4, under the title of "Crimes against property.'

You cannot intelligently and consistently speak of one crime being of inferior degree to another where they belong to different and independent classes of crime. Necessarily, therefore, the language of this statute is confined to a narrow circle of cases. It can in the first instance relate only to those that belong to the same class of offenses. Second degree murder, manslaughter, assault and battery, and assault, are all comprehended within the charge of murder in the first degree, because they are all offenses against the person, and all the elements of each are included in the charge of murder in the first degree.

In the popular sense, naturally, incest would be regarded as inferior in degree to rape, but that is not the legal significance attached to these words in criminal practice.

Opinion, per WANAMAKER, J.

But this charge, request No. 7, should not have been given for another reason. It was not a correct statement of the law. It made a pardoning board out of the jury, and practically said to them, "No matter what the evidence shows, you can find the defendant not guilty of rape, though proven so beyond a reasonable doubt, and return a verdict of guilty as to incest."

The court might just as well charge the jury in a clear first degree murder case: "You may find the plaintiff not guilty of murder in the first degree, and may find him guilty of assault and battery."

The jury were given no principles of law or rules for weighing the evidence in determining their verdict touching request No. 7, and the whole subject was left merely to their pleasure or their whim, without regard to the evidence.

But, in the opinion of a minority of the court, there is another reason why request No. 7 should not have been given. The prosecutrix in this case was not only the daughter, but a mere child of tender years, twelve years of age at the time of the brutal assault. She was clearly under the age of consent. Section 12415, General Code, reads:

"Whoever, being eighteen years of age, attempts to carnally know and abuse a female person under sixteen years of age, with her consent, shall be imprisoned in the penitentiary not less than one year nor more than fifteen years.'

As a matter of public policy the legislature has fixed the age of consent as to female persons at sixteen years of age, and, under that age, not only as

Opinion, per WANAMAKER, J.

a matter of general public policy but as statutory denouncement, a prosecutrix is in law not capable of consent.

This doctrine is announced in 33 Cyc., 1424:

"Intercourse with a female under the age of consent at common law, or as thus fixed by the statute of the state in which the offense occurs, is rape, whether she consents or not, as she is in law incapable of consent."

A large number of authorities are cited in support of this doctrine, from Alabama, Arkansas, Colorado, Connecticut, Georgia, Indiana, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Missouri, and a great majority of the leading states of the union. Among them a few are noted as follows:

In Addison v. People, 193 Ill., 405, in which it is held: "The purpose of the statute is that a girl under fourteen years of age shall be incapable of consenting to an assault upon her for the purpose of carnal intercourse."

Hanes v. State, 155 Ind., 112:

"Furthermore, any touching of the person of a female child under the age of fourteen years, with intent to perpetrate upon her the act of sexual intercourse, is, and necessarily must be, in legal contemplation, without her consent, for she can give no consent that will make the act lawful."

State v. Day, 188 Mo., 359:

"In a prosecution for carnal knowledge, the consent of the female, if she is under the age of eighteen years, does not affect defendant's criminality."

Opinion, per WANAMAKER, J.

White v. Commonwealth, 96 Ky., 180:

"The statutory offense of carnally knowing a female under twelve years of age may be committed even though the female nominally consents, as she is not in legal contemplation capable of consenting."

This same doctrine was announced in State of Ohio v. Carl, 71 Ohio St., 259. The syllabus of that case reads:

"On the trial of an indictment under section 6816, Revised Statutes, for carnally knowing and abusing a female person under the age of sixteen years with her consent, the evidence having established the carnal knowledge and the alleged ages of the parties, evidence tending to show that the act was committed without consent does not constitute a fatal variance."

In the Straub case, supra, and the Robinson case, supra, the indictment was for incest. The indictment in the Carl case was for rape, and upon exceptions of the prosecuting attorney to the ruling of the trial court, which held there was a fatal variance, the supreme court of Ohio sustained the exceptions and held that the offense was none the less rape, because the prosecutrix, being under age, was proven not to have given her consent.

Judge Shauck, speaking for the court, said at page 265 of the opinion:

"The ruling of the judge of the court of common pleas must have been prompted by the view that the phrase 'with her consent' defines an essential element of the crime charged. At least that view pervades the brief in support of the ruling. To justify