¶1 There is no error. His Honor left it to the jury, upon the testimony, to find whether there had been any penetration ; stating that any, the least penetration was sufficient to constitute the crime of rape, and that it was not necessary to constitute this crime, that the hymen should be ruptured. His Honor was well warranted by authority in thus charging the jury. See 9 Carrington & Payne 572 and note, Bishop’s Criminal Law, Vol. 2, Sec. 1078, American Criminal Law, Vol. 2, Section 1138.
¶2*467 In the case of the State v. Grey & Jones, decided at December Term, 1860, it was held that to constitute the crime of rape there must be proof of emission, as well as penetration, to constitute this crime.
¶3 The act of the 29th February, 1861, changed the law and enacted that the offence of rape “ should be claimed and taken in law to be complete upon proof of penetration ‘ only.’ ”
¶4 There being no error, this will be certified, that the Court may proceed to judgment agreeable to law.
¶5 Pee Cueiam. Judgment affirmed.