Opinion, per Matthias, J. The language used by Scott, J., in Wolf v. Powner, supra, at page 476, is pertinent: "We all concur in the opinion that the parties intended to be excluded from testifying by this section are the real, and not the mere formal, nominal, and wholly unnecessary parties." A plaintiff may not preclude a person from testifying against him by merely placing the name of such person in the caption of his petition. At common law parties were incompetent as witnesses on the sole ground of interest. Section 11493, General Code, was enacted for the very purpose of removing the disqualification imposed by the common law and making competent the testimony of parties notwithstanding they have an interest in the matter in litigation. This provision is broad and comprehensive and can be limited or restricted only as expressly provided by Sections 11494 and 11495, General Code. In the case of Powell, Admx., v. Powell, Admx., 78 Ohio St., 331, this court held that in the trial of an action on a promissory note, brought by the administratrix of the estate of the payee against the administratrix of the estate of the maker, the lower court committed error in excluding as incompetent the evidence of the children of the payee, relative to conversations had with the deceased maker concerning his liability on the note, and the consideration for the same, although such children were legatees or devisees under the will of the payee. In that case, at page 335, it is well stated by Price, J., who rendered the opinion of the court, that "Interest in the controversy is of itself no longer regarded as a sure Opinion, per MATTHIAS, J. ground of presumption that a party or witness will falsify or give testimony colored or biased in favor of such interest." In that case the heirs and devisees of the payee were not named as parties, but, as suggested in the opinion, they could not have been properly named as parties to the action on the issues joined in the pleadings. It was further stated in that opinion, page 338, that "The heirs or legatees of personal estate acquire their interest on distribution and such interest may eventually be small or nothing. They were not disqualified because they might ultimately receive a part of the estate." The heirs and legatees in that case had the same interest in the outcome of that controversy that the heirs of Julia A. Loney or Ruben C. Loney would have in the results of the litigation in this case. It was sought to apply these restrictive provisions of Section 11495 upon the theory that the plaintiff, Elva L. Loney, occupies the relation of the assignee of a deceased person. It is only upon that assumption that the statute could have any application whatever to exclude the testimony of Mrs. Doup and Mrs. Pealer, even if they were proper parties, or to exclude the testimony sought to be adduced by the defendant W. W. Walkey. Under the express provisions of the statute, the testimony of a party is competent as to facts which occurred "after the time the decedent, grantor, assignor, or testator died." If the plaintiff claimed as assignee of a deceased person, that deceased person was Ruben C. Loney, and the facts concerning which any inquiry was directed to these witnesses, and each of them, occurred subsequent to his death. Opinion, per Matthias, J. The reason and spirit clause to which we have above referred, by its very terms, applies not only to Section 11495 but also to Sections 11493 and 11494, and, whatever purpose it may have been intended that provision should serve, it cannot be employed to contravene the express provisions of the statute. This is but an application of the doctrine clearly announced in Powell v. Powell, supra, and also in Cochran v. Almack, 39 Ohio St., 314, and Keyes v. Gore, 42 Ohio St., 211. For the reasons stated the judgment of the court of appeals is affirmed. Judgment affirmed. MARSHALL, C. J., JOHNSON, HOUGH, WANAMAKER, ROBINSON and JONES, JJ., concur. Statement of the Case. THE STATE OF OHIO V. LABUS. Criminal law-Included offenses - Section 13692, General Code Incest not inferior degree to rape. 1. Section 13692, General Code, relating to an indictment charging an offense “including different degrees," under which the jury are authorized to find the defendant “not guilty of the degree charged and guilty of an inferior degree thereof," relates only to offenses of the same general character and class in the several crimes acts of Ohio, and does not relate to distinct and independent crimes of different classes of offenses. (State v. Whitten, 82 Ohio St., 174, approved and followed.) 2. Under that doctrine the crime of incest is not included within the crime of rape as being one of an inferior degree to rape. (No. 16695-Decided February 15, 1921.) ERROR to the Court of Appeals of Jefferson county. The defendant in error, Bert Labus, was indicted by the grand jury of Jefferson county, Ohio, upon a charge of rape upon his daughter, under Section 12413, General Code. Upon trial to a jury a verdict of guilty as charged in the indictment was returned against him, and judgment and sentence were pronounced on that verdict. Error was prosecuted to the court of appeals to reverse the judgment of the court of common pleas for its refusal to charge the defendant's request No. 7, which was as follows: "The defendant, who is indicted for rape upon his daughter may be found not guilty of rape, and if the jury find beyond a reasonable doubt he had Opinion, per WANAMAKER, J. carnal knowledge or his daughter, he may be convicted of incest." Upon hearing had in the court of appeals that court reversed the judgment of the court of common pleas, solely for the reason that it refused to give to the jury said request No. 7 upon the charge of incest. Error is now prosecuted to this court to reverse the judgment of the court of appeals. Mr. Roy R. Carpenter, prosecuting attorney, for plaintiff in error. Mr. E. DeWitt Erskine and Mr. Fred A. Stone, for defendant in error. WANAMAKER, J. Section 12413, General Code, reads: "Whoever has carnal knowledge of his daughter, sister, or a female person under twelve years of age, forcibly and against her will, shall be imprisoned in the penitentiary during life; and whoever has carnal knowledge of any other female person, forcibly and against her will shall be imprisoned in the penitentiary not less than three years, nor more than twenty years." The body of the indictment in this case, drawn under this section of the statute, reads as follows: "Bert Labus, late of said County, on or about the 14th day of October, in the year of our Lord one thousand nine hundred and nineteen, at the County of Jefferson aforesaid, in and upon one C. L., then and there being a female person, unlawfully and violently did make an assault upon her, the said C. L., then and there forcibly and against |