The opinion of the court was delivered by: Stukes, Justice.
The prosecutrix was a little over fourteen years old when she was married with her parents' consent about a year before the events under investigation, and was about fifteen and a half years old at the time of the trial in February 1955. (The appellants are much older and two of them were married and fathers by that time.)
She, her husband, her brother (who was in Germany at the time of trial) and his soldier-guest from Fort Jackson went to a cafe in Winnsboro at eleven o'clock at night and the men drank beer, but she did not. When they left a little after midnight her husband's car would not start and her brother and the others in another car pushed them off in an unsuccessful effort to start her husband's car. Shortly afterward the three appellants and another, one Mode, in appellant Collins' automobile, overtook them, whereupon her brother and his friends hastily departed in their car, and the appellants began to push the stalled car. Failing to start it promptly, they all got out of their respective cars except the prosecutrix and she finally did, at the instance, she testified, of the appellants who threatened her husband and forcibly put her in their car with the understanding that they would take her to her nearby home, which was in or near the Winnsboro Mills village.
The prosecutrix and her husband testified that appellants posed as plainclothes C.I.D. men (which the record indicates to mean Counter Intelligence Division) and said that they were looking for eight service men who had been A.W.O.L. (absent without leave) for forty days. They called one of themselves a captain, another a lieutenant and the third a sergeant. (In fact, only one of the three was in the military service, and he an airman first class.) With her in their car they gave her husband's car a final push which started it and her husband had to jump in the car and steer it in order to avoid colliding with other cars which were parked there. Appellants immediately turned their car away and drove through the village, passing the home of the prosecutrix, which she pointed out, without stopping or slowing and refused to let her out. They then drove through the main street of the town and let Mode out; then out on a highway, turned on a dirt road, stopped and each in turn had intercourse with her, one of them twice, before they returned to Winnsboro — all over her objection and resistance, she said.
She testified further that as they first drove through and on out of town she was frightened and the appellants made the threat that unless she cooperated they would, quoting, "get your husband and lock him up," and they hugged and kissed her despite her resistance and tearful entreaties to be taken home.
When they got back to town they drove into a filling station, which was open, but did not stop, thence out on another highway and then back to town to a house where she represented to them that more girls could be secured; this, she said, was a ruse to get away from appellants. It was then after two o'clock in the morning. She got out and knocked on the door of the house, to which there was no answer, and she went next door, which was the home of a Mrs. Porter. The latter's son answered the knock of the prosecutrix and she went in, whereupon the appellants drove off in their automobile. The prosecutrix made complaint to Mrs. Porter and her son, was crying and hysterical, and he and a neighbor took her to her mother's home, where her husband soon found her.
He had reported the disappearance of his wife to officers and, with the aid of relatives, searched the town and its environs for her in vain. A policeman was on the lookout for appellants' automobile and recognized it when it drove in the filling station upon return from the country, but it was lost to the policeman's view before he could turn his automobile around and pursue it.
There are numerous exceptions which counsel for appellants reduced in his brief to a lesser number of questions and some of them he expressly abandoned in argument. Those preserved are summarized in the conclusion of the brief, which we shall follow in our discussion of them.
The first and major question is stated by counsel as follows: Where a jury acquits a defendant of rape, but finds him guilty of assault and battery of a high and aggravated nature, can this verdict be sustained as a matter of law, when both the prosecutrix and the defendant admitted the penetration, the former contending it was accomplished with force and without consent, but the latter averring it was done with consent and without force?
Like contention appears to have been heretofore made in this court only in the case of State v. Henderson, 226 S.C. 227, 84 S.E.2d 626, in which the point was not decided. The foregoing statement of the question was taken verbatim from the report of that case, for which appellants' counsel made acknowledgment in oral argument. In support of it he cites, apparently also from the Henderson case: State v. Driscoll, 1932, 106 Ohio St. 33, 138 N.E. 376; People v. Lewis, 1911, 252 Ill. 281, 96 N.E. 1005; and People v. Keith, 1904, 141 Cal. 686, 75 P. 304. However, reference to these decisions shows that in none of them was the result reached which appellants seek. In State v. Driscoll conviction of rape was affirmed and failure to charge upon lesser offenses was held not error. In People v. Lewis the indictment and conviction were for rape; instruction of the jury upon assault with intent to commit rape was held to be error under the facts, but not prejudicial error. The holding in People v. Keith, in which the indictment did not contain separate counts of the lesser offenses, is accurately summarized in the syllabus, as follows: "Where, in a prosecution for rape, the evidence admits of no doubt as to the sexual intercourse, and there is no evidence tending to reduce the offense, it is not error to refuse to charge on assault with attempt to rape and other lesser offenses."
On the other hand, the authorities which are directly in point that we have found are against appellants' position. They follow.
In State v. Cross, 12 Iowa 66, 79 Am. Dec. 519, conviction of assault with intent to commit rape was affirmed and it was said: "While if he had been convicted of the higher offense we might have inclined to the opinion that the testimony was not sufficient, we easily arrive at a different conclusion when the jury have only found the assault with intent. Of course, if there was consent on the part of the prosecutrix, there could be no such violence as to render the prisoner guilty, for if the liberties were taken with her consent, there could be no rape, nor yet an assault with that intent. But where the assault is made by the prisoner with the intent to commit the offense, and this is clearly shown, the jury might convict, though not satisfied that at the time he consummated his purpose, there was such want of consent as to constitute the higher crime. * * * The jury must be satisfied before they could convict for the assault, that the prisoner intended to gratify his passion on the person of the prosecutrix, at all events, and notwithstanding any resistance on her part, and yet this might be done, though they were not satisfied that the resistance on her part was so continued and persistent as to prove guilt of the higher crime, when he succeeds in having carnal knowledge. * * * And then again, there is a wide difference between consent and submission. Consent involves submission, but a mere submission by no means necessarily involves consent. * * *"
Likewise in State v. Atherton, 50 Iowa 189, 32 Am. Rep. 134, conviction of assault with ...