#### STATE v. WESLEY GRAY.

In ail indictment under our statute, Rev. Code, cliap. 34, sec. 5, for carnally knowing and abusing an infant female under the age of ten years, it was held error in the Judge to charge the jury, that proof of emission of seed was not necessary in order to convict the prisoner.

This was an indictment, under the statute, against the defendant, for carnally knowing and abusing a female infant under the age of ten years, tried before Saunders, J., at the last Fall Term of Guilford Superior Court.

The indictment charged, that the defendant did carnally know and abuse one Louisa E. Wheeler, alias Louisa E. Stack, a female under the age of ten years. It appeared, in evidence, that she was between the ages of eight and nine years, at the time of the commission of the offense; that she was of ordinary size, and of more than ordinary intelligence. She testified that she was sent to Jamestown to carry dinner to her father, who was at work there, it being about a mile from where she lived, and that she walked on the track of the railroad ; that her father was engaged in digging a well there; she saw the prisoner at the well; that he was not at work; *171that after her father finished his dinner, he ordered her home ; that when she started, the prisoner followed her and overtook her in less than a quarter of a mile; that he was fif? teen years old, and as she did not like to travel with him, she stopped at one Jackson’s, who lived near the road, to get some water ; that prisoner proposed to wait for her, and called her two or three times ; that she supposed he was gone, but on getting into the road, he again joined her; that going a short distance they met his sister and her husband, who proposed that he should go back with them, which he declined ; she went on and he soon’overtook her again, and began to talk “ nasty words that she picked up a rock or stone and told him, if he touched her, she would throw it at him; that he thereupon seized her by her shoulders, pushed her a few steps out of the road, pulled up her clothes, threw her down and got on her, and tried to stop her mouth; that she hollowed as loud as she could; that he remained on her some five minutes ; that he hurt her very much when he entered her person, and made her private parts bleed; that he then got off of her, got some switches and threatened to whip her if she did not promise not to tell her mother; that he whipped her until she promised, and then left her; that she went on home, and on going into the house, told her mother that prisoner had nearly killed her. Her motheqwas then examined, and testified to what the child had stated.

Doctor Pugh testified, that he was called the next day, examined the child, and found her private parts very much swoolen, torn and lacerated; that there had been a penetration, certainly, as much as three-fourths of an inch, or perhaps an inch and a half; that he was decidedly of opinion that the entry had been as far as it was possible in a child of her age. The father also testified to having seen the prisoner at the well when the girl left, but did not see him afterwards.

The Court charged the jury, that if the testimony of the girl was to be believed, and the -Doctor was correct in his opinion, and the jury believed it, the offense was made out, and that it was the duty of the jury to convict. That pene*172tration was sufficient,'and emission not necessary to be proven. Defendant’s counsel excepted.

Nerdict for the State. Judgment. Appeal by defendant.

Attorney General, 'for the State.

1Gorrell, for the defendant.

Battle, J.

The main question in this case, and the only one which we deem it necessary to notice particularly, is, whether upon an indictment, under our statute, for carnally knowing and abusing a female child under the age of ten years, it is necessary to prove the emission of seed, in addition to the proof of penetration. This question has not hitherto been before the Supreme Court of this State for adjudication, either with regard to this crime or that of buggery. We are under the impression, however, .that on the circuits, proof of both penetration and emission have been, generally, deemed necessary, and have been required for the conviction of prisoners charged with either of these offenses.

In England, the contrariety of opinion, as to the law on this subject, among her greatest writers and Judges, is remarkable. Lord Coke, in his 3 Inst. 59-’60, says that penetration only is necessary to consummate the offense, while in his 12 Rep. 37, proof of, both penetration and emission was held to be indispensible for the conviction of the offender. Lord Hale seems likewise to have entertained different opinions at different times; see 1 Hawk. Pie. ehap. 4,sec.2; chap.41, sec. 1, and 1 Hale P. O. 628. In 1721, a case was brought before eleven Judges upon a special verdict, when six of them thought both penetration and emission were necessary, while the other five deemed penetration, only, to be sufficient. The Judges being divided, it was proposed to discharge the special verdict and indict the prisoner fora misdemeanor; see 1 East P. Or. 437. After that time, for about sixty years, the weight of judicial authority seemed to be in favor of requiring proof of penetration only. But in 1781, a case occurred before Bullbr, Judge, in which the jury found there was *173penetration, but no emission, whereupon the learned Judge respited the prisoner until he could obtain the opinion of the other Judges. Two of them, to wit, Lord Loughborough and Heath, J., held with him, that the offense was complete; but eight others, including Lord Ch. B. Skynner and Lord Mansfield, were of a contrary opinion, upon the ground, that carnal knowledge must include both penetration and emission. They held, however, that the latter might be inferred from the former, unless the contrary appeared probable from the circumstances; as, for instance, where the offender was frightened away by the approach of other persons before he had had his will of his victim. The opinion of the majority of the Judges in this case, prevailed, without much question, until the year 1829, when, by the statute of 9th Geo. 4, chap. 31, it was declared (after the recital that many offenders had escaped on account of the difficulty of the proof in such crimes) that “ it shall not be necessary, in any of those cases, to prove the actual emission of seed, in order to constitute a carnal knowledge, but that the carnal knowledge shall be deemed complete upon the proof of penetration only.”

"We have already stated our belief of what has been the prevailing opinion in this State, and in that opinion, we entirely concur. Our statute law, with regard to these offenses, is now, and has been heretofore, the same as that which existed in England, prior to the statute of 9th George 4, above referred to, and their adjudications upon their statutes, have, no doubt, influenced our Judges to adopt the same construction upon ours. It is an argument, of no little weight, in favor of that construction, that a boy, under the age of fourteen years, cannot be guilty of the offense of rape, because, until he arrives at about that period of life, he is incapable of emitting seed. Such has always been considered to be the law of England, and it has very lately been decided to be the law of this State ; see Rex v. Elderslaw, 14 Eng. C. L. Rep. 367; State v. Rugh, 7 Jones, 61.

In the case now before us, the presiding Judge might have submitted the facts to the jury and left it to them to make the *174inference that there was emission, if they believed that there was penetration. If the facts were found to be as testified by the witnesses, then the jury would have been justified in rendering their verdict, that the complete -offense had been committed ; but as our Legislature has not yet passed an act similar to that of 9th George 4, his Honor erred in telling the jury, that proof of emission was not necessary. For this error, the prisoner is entitled to have the judgment reversed, and a mnite de novo.

Per Curiam,

Judgment reversed, and a venire de novo.