State v. Stackhouse. well settled that it is not error to refuse even a proper instruction upon a question of law upon which the court has correctly instructed the jury in another instruction. [State v. Driscoll, 235 Mo. 377; State v. Gow, 235 Mo. 307; State v. Sharp, 233 Mo. 269; State v. Nelson, 166 Mo. 191.] Instruction numbered 3 asked by the defendant declared it to be the law that in prosecutions for rape the prosecutrix must be corroborated and that a conviction could not be sustained upon her testimony alone. That instruction was properly refused for the reason that it was not a correct statement of the law. This court has held in a number of cases that corroboration of the prosecutrix is not essential to sustain a conviction for rape. [State v. Tevis, 234 Mo. 276; State v. Welch, 191 Mo. 179; State v. Dilts, 191 Mo. 665; State v. Day, 188 Mo. 359; State v. Marcks, 140 Mo. 656.] II. One ground of the motion for a new trial is that the court admitted incompetent evidence over the defendant's objections. We have carefully examined the record upon this point. Many objections were made by the defendant to the testimony offered by the State and except in a few instances they were sustained. Those that were not sustained were objections to testimony as to sending for the doctor to examine prosecutrix; as to the appearance and condition of prosecutrix after the alleged offense; as to what she said to the defendant when he came into the house; as to what the defendant said to neighbors the same day; and as to the competency of the doctor to describe the condition of prosecutrix when he made the examination. All of the testimony thus objected to is so clearly admissible under the well recognized rules of criminal evidence that we do not consider it necessary to cite authority in support of the rulings of the court. 242 Sup.-29 State v. Stackhouse. III. A new trial was asked upon the ground that the court had erred in its instructions to the jury. The court gave twelve instructions which fully presented every question of law arising in the case, and they were as favorable to the defendant as he was entitled to. IV. The defendant asked an instruction in the nature of a demurrer to the evidence at the close of the State's case, which was refused, and in the motion for a new trial and again in this court he complains that the evidence was insufficient to sustain the verdict. This assignment requires a brief review of the incriminating facts in evidence. The alleged offense was committed at ten o'clock in the morning of the last day of June. We gather from the testimony that the Ludwig home was in a thickly settled community. The defendant had visited a number of houses in that neighborhood the same day. He left his cards at the places he visited and similar cards were found in the buggy which he had hired and used for a number of days in his business. He was identified by the people he had visited both in personal appearance and by the horse he drove. The liveryman recognized him as the man who had used his horse and buggy. He was also identified by those who saw him going into the Ludwig house and coming out of it. He was therefore identified by the most satisfactory evidence as the man who had entered the Ludwig home on that day and committed the offense upon the prosecutrix, if any offense was committed upon her. As to the facts tending to prove the corpus delicti the evidence is not so direct and satisfactory as it is upon the question of identity. This may have been because of the youth and immaturity of the prosecutrix. But in addition to her testimony it was in evidence that the prosecutrix was found crying shortly after the defendant left the house; that her genital State v. Stackhouse. organs were swollen; and the physician found an abrasion from which blood oozed, half an inch within the external parts of her body. Besides, when the defendant was apprehended he gave a false and assumed name, thus showing a consciousness of guilt. Such testimony leaves little doubt of the commission of one of two offenses, namely, rape and assault with intent to rape, upon which the court, under proper instructions, authorized a conviction. The only room for uncertainty is as to whether the evidence tended to prove the higher offense, of which the defendant was convicted, or only the lesser crime of assault. If there was satisfactory testimony from which the jury could find that there was a penetration of the body of the prosecutrix, then they were authorized to find the defendant guilty of the crime of rape, and the verdict should stand. The law as to what penetration is sufficient to constitute the crime of rape is stated in Kelley's Crim. Law & Prac., sec. 539, as follows: "The slightest penetration, though not of sufficient depth to injure the hymen, has been held sufficient to constitute the crime of rape. Penetration may be presumed from the circumstances." The law as thus stated is supported in 1 Wharton's Crim. Law (10 Ed.), secs. 554, 555; 2 Bishop's New Crim. Law (8 Ed.), sec. 1132; 33 Cyc. 1422. Under the foregoing rule it must be held that the court properly refused the demurrer to the testimony, and that the jury was fully warranted in finding the vedict returned. Because of the seriousness of the charge against the defendant we have gone over this record with the utmost care, and our conclusions are that the defendant was accorded a fair trial; that the evidence sustains the verdict; and therefore that the judgment should be affirmed. It is so ordered. Ferriss, P. J., and Brown, J., concur. State v. Hurley. THE STATE v. ROBERT. HURLEY, Appellant. Division Two, May 9, 1912. 1. INDICTMENT: No Date of Offense: Rape. An indictment charging statutory rape on a girl under the age of fourteen years, is not defective because it does not fix a date for the commission of the offense. The time is not material. There is no limitation to the prosecution, and if there were error in this regard it is cured after verdict by the provisions of section 5115, Revised Statutes 1909. 2. ELECTION: Several Acts of Sexual Intercourse: After Opening Statement. An assignment that the prosecuting attorney should have been compelled immediately after his opening statement, to elect upon which act of sexual intercourse with prosecutrix the State would go to the jury, since that statement revealed that he knew of and expected to prove several separate and distinct acts, will not be considered on appeal unless said. statement is preserved in the record. 3. : -: At Close of Prosecutrix's Testimony. It will not be held that it was error on the part of the trial court to refuse, at the close of the testimony of prosecutrix when she was first on the stand, to compel the prosecuting attorney to elect upon which of several acts of sexual intercourse with the little girl the State would go to the jury, where an election was later directed and made, and thereafter the State recalled prosecutrix and she testified concerning the act upon which the State had elected to stand, and ample opportunity was given defendant to cross-examine her; especially should this be the ruling where the prosecutrix, when first upon the stand, did not undertake to detail the various acts of intercourse. 4. - : -: Prior Testimony of Other Acts Subsequent to Elected Act: Identity. The prosecuting attorney, in a rape case, cannot be required to elect upon which of distinct acts of sexual intercourse the State will stand until he can do so intelligently, and usually the proper time is at the close of the State's case; and the admission of testimony of acts committed subsequently to the one the State elects to stand upon, admitted prior to an election timely made, is not error. Then the only thing the trial court can do is to withdraw the testimony of the subsequent acts from the jury, but it is not held that such withdrawal is necessary. Besides, the competency of the testimony as to the subsequent acts as tending to establish the identity of the defendant, while discussed, is not decided, since not squarely raised. State v. Hurley. 5. VERDICT: Passion and Prejudice: Seven Years for Rape. It cannot be said that a verdict assessing defendant's punishment at seven years' imprisonment, where the minimum is five, in a case, of the most flagitious character, or carnal knowledge with a child under the age of fourteen years, is the result of passion and prejudice. Appeal from Wright Circuit Court.-Hon. C. H. AFFIRMED. Jackson, Evans & Green for appellant. (1) The indictment is defective for the reason that it fails to specify any certain and specific date when any crime was committed. Each act of intercourse, with an unmarried female under the age of fourteen years, being a separate and distinct offense, the defendant should be apprised, from the pleadings. in the indictment lodged against him, of the specific date the crime was committed for which he is called upon to defend against. State v. Dalton, 106 Mo. 463; State v. Miller, 111 Mo. 545; State v. McGinnis, 126 Mo. 564; State v. Ferguson, 221 Mo. 524, and do not affirmatively hold this to be necessary, but do so by implication. State v. West, 21 Mo. App. 311; State v. Bach, 25 Mo. App. 556; State v. Hughes, 82 Mo. 86, and affirmatively hold this doctrine to be true. (2) It was made known to the court by the opening statement of the prosecuting attorney to the jury that the State would show the commission of several separate and distinct offenses similar to the one charged in the indictment and the court erred in not requiring the State at that time to elect upon which act of intercourse the State would rely for conviction. State v. Palmberg, 199 Mo. 233; People v. Williams, 133 Cal. 168; People v. Flaherty, 166 N. Y. 532. (3) The court erred in not requiring the State to elect upon which act of intercourse it would rely for a conviction after the testi |