#### ROY FOXWELL *vs.*STATE OF MARYLAND.

*Indictment*— Carnal *Knowledge of Minor*— ■Surplusage—Excep*tion in Statute*— Demurrer *to Evidence.*

A count in an indictment, averring that defendant “did make an assault, and” did unlawfully and carnally know a female, not his wife, between the ages of fourteen and sixteen years, is not demurrable on the ground of duplicity, it being evidently not intended thereby to charge two offenses, and the allegation 'as to an assault, whether appropriate or inappropriate, being-unnecessary and capable of rejection as surplusage. p. 92

An indictment under Code, art. 27, sec. 422, for having-carnal knowledge of a female under sixteen years, need not aver that defendant was not under the age of eighteen years, the provision in the statute that it shall not apply to persons under that age not being incorporated in the description of the offense, but being an exemption provided in a subsequent clause and available to the accused only in the event of the existence of a fact peculiarly within his own knowledge. pp. 92, 93

On a prosecution for having carnal knowledge of a female under sixteen years of age, testimony of the prosecuting witness as to her movements to and from the place where the crime was said to have been committed *held*admissible. p. 93

*91The testimony being such, that the jury could readily infer therefrom that the prosecuting witness was not the wife of accused, it was proper to refuse to strike out the prosecution’s testimony for failure to prove that fact. p. 93

There being testimony as to a statement by the accused that he was not out of the county on the night named in the State’s testimony as the time of the commission of the crime, and no objection being made to such testimony when offered, and no attempt made to qualify its effect, it could not be contended that there was no evidence that the alleged crime occurred in the county. p. 94

A motion made by defendant to strike out the whole of the testimony for the State, on the ground of a failure of proof as to an essential element of the crime, is in legal effect a demurrer to the evidence, which is not permissible in this State, where the jury in criminal cases are the judges as to the legal effect of the evidence and the court decides only as to its admissibility. p. 94

*Decided June 7th, 1924.*

Appeal from the Circuit Court for Dorchester County (Dailet and Dues, JJ.).

Criminal proceeding against Noy Eoxwell. Erom a judgment of conviction, defendant appeals.

Affirmed.

The cause was argued before Pattisox, TTiíxee, AmeiNS, OeKCtx, Digges, and Bown, JJ.

*Lelloij L. Wallace*and *V. Calvin Trice,*for the appellant.

*Robert II. Archer, Assistant Attorney General,*with whom were *Thomas II. Robinson, Attorney General,*and *A. Stengle Marine, State's Attorney for Dorchester Comity,*on the brief, for the State.

TURNER, J.,

delivered the opinion of the Court.

The indictment in this ease, by the first of its two counts, charged that the appellant, on July 22, 1923, in and upon a *92designated female, not Ms wife, between the ages of fourteen and sixteen years, did make .an assault, and then and there did unlawfully and carnally know her, contrary to tire form of the Act of Assembly in such case made' and provided and against the peace, government and dignity of the State. Upon this charge the appellant was tried and convicted, a demurrer to the indictment having been sustained .as to the second count, which attempted to allege an assault with intent to ravish.

The demurrer to the indictment raised the first questions to be considered on this appeal. The count on which t-he appellant was tried is said to be demurrable on the ground of duplicity, because it accused him of having .assaulted, and also of having carnally known, a girl who- was between the ages of fourteen and sixteen years. This objection was properly overruled. It was evidently not intended by the first count of the indictment to charge two distinct offenses. The use of thei phrase “did make an assault” was probably suggested by its employment in the common form of indictment for rape. 3 *Bishop’s Crim. Proc.*(2nd ed.), sec. 949. While force is not an essential element of snch a crime as the one of which the appellant was accused and convicted, the legal incapacity of the prosecuting witness to consent to the act suggests a. legal implication of assault in its commission. But whether or not the .allegation of an assault was appropriate, it was certainly unnecessary, and may be rejected as surplusage. *State*v. Erickson, 45 Wis. 86; *Bishop on Statutory*Crimes, sec. 486; 4 *R. C. L.*191; 31 *C. J.*747. The specific charge against the appellant was that of having carnal knowledge of a female, not his wife, who was between the ages of fourteen and sixteen years, contrary to section 422 of article 27 of the Code, and the indictment sufficiently made that accusation.

The Code1 section just cited concludes with a proviso that, it shall not apply to male persons under the age of eighteen years. It was argued that the indictment should have alleged the appellant’s age to have been beyond the limit which the *93proviso specified. This was not a necessary averment. The restriction by the proviso1 as to the application oí the statute, according to the age of the accused, afforded a possible groun i of defense which the indictment was not required to anticipate and negative. The provision was not incorporated in the description of the offense with which the statute was concerned. It was an exemption provided in a subsequent clause and available to the accused only in the event of the existence of a fact peculiarly within his own knowledge. *Howes*v. *State,*141 Md. 532; *State*v. *Jenkins,*124 Md. 376; *Ruggles*v. *State,*120 Md. 553; *Kiefer*v. *State,*87 Md. 562; *Stearns*v. *State,*81 Md. 341.

There were three exceptions to adverse rulings of the court on motions by the appellant to strike out testimony. The first of the motions was made: after the prosecuting witness had testified to material facts which the indictment alleged. It was proposed that all of her preceding testimony be excluded. The trial court properly overruled the motion. The testimony was not taken subject to exception. It was relevant to the issue and the objection to it, if made when it was offered, could not have prevailed.

The second motion applied to the concluding portion of the testimony in chief of the prosecuting witness, which was taken subject to exception, and which consisted of her answers to some further questions as to her movements to and from the place where the crime charged against the appellant was said to have been committed. The examination was pertinent and proper, and the action of the court in overruling the motion was correct.

After two other witnesses had testified, the appellant moved to strike out all of the testimony which had been introduced for the. prosecution. The ground of this and the preceding motions', as stated in argument, was the asserted failure of the evidence to prove the averments of the indictment that the prosecuting witness was not the wife of the appellant and that the .alleged crime occurred in Dorchester County. The jury could readily infer from the testimony *94that the prosecuting witness was not the appellant’s wife. While she could not describe the location of the house which was the scene of the crime, there was testimony as to a statement by the appellant that he was not out of Dorchester County' on the night mentioned in the State’s proof as the time of the commission of the act for which he was being tried. No objection was made to' this testimony when it was offered, and there was no attempt- to qualify its effect by cross-examination. If the motion, made at the close of the State’s case to strike out all of its evidence, could entitle the appellant to question its legal sufficiency to sustain a conviction, we should be unable to adopt the theory on which the objection is urged. But it has been definitely decided that a motion, made under conditions like those shown by the present record, to strike out the whole of the testimony for the State, is in legal effect a demurrer-to- the evidence, which is not permissible in Maryland, where the jury in criminal cases are the judges of the legal effect of the evidence and the court decides only as to its admissibility. *Jessup*v. *State,*117 Md. 119; *Dick*v. *State,*107 Md. 17; *Archer and Wilson*v. *State,*145 Md. 128.

There was no error in any of the rulings.

*Judgment affirmed, with costs.*