[1] Defendant’s motion for nonsuit was properly denied. While there were some inconsistencies in the evidence for the State, the evidence and the inferences therefrom were sufficient to take the case to the jury on the charged crimes. State v. Bell, 285 N.C. 746, 208 S.E. 2d 506 (1974).
*484 [2] Defendant assigned error in the charge of the trial court on the lesser included offenses of second degree rape, assault with intent to commit rape and assault on a female. His argument on appeal is limited only to the charge on second degree rape. The rape statute then in effect provided:
Every person who ravishes and carnally knows any female of the age of 12 years or more by force and against her will, or who unlawfully and carnally abuses any female child under the age of 12 years, shall be guilty of rape, and upon conviction, shall be punished as follows:
(1) First-Degree Rape —
a. If the person guilty of rape is more than 16 years of age, and the rape victim is a virtuous female child under the age of 12 years, the punishment shall be death; or
b. If the person guilty of rape is more than 16 years of age, and the rape victim had her resistance overcome or her submission procured by the use of a deadly weapon, or by the infliction of serious bodily injury to her, the punishment shall be death.
(2) Second-Degree Rape — Any other offense of rape defined in this section shall be a lesser-included offense of rape in the first degree and shall be punished by imprisonment in the State’s prison for life, or for a term of years, in the discretion of the court.
G.S. 14-21 (repealed effective 1 January 1980). Prior to 1973 when the above quoted statute was adopted, there was no division of the crime of rape into first and second degrees. The legislative purpose of dividing the crime of rape into degrees was to reduce the mandatory sentence of death upon all convicted rapists. The 1973 revision did not reconstitute or redefine the crime of rape. State v. Davis, 291 N.C. 1, 229 S.E. 2d 285 (1976). Defendant contends the court should have charged only on G.S. 14-21(l)a and not G.S. 14-21(2). The evidence did tend to show that defendant unlawfully and carnally abused a female child under the age of twelve and that defendant was more than sixteen years of age and that the victim was a virtuous child under the age of twelve. This would be a violation of G.S. 14-21(l)a. The evidence on the *485age of defendant and the victim is not in conflict. However, there was some inference from the evidence, though slight, that the victim was not a virtuous child under thé age of twelve. If the child carnally and unlawfully known by a defendant is not virtuous, the crime would be second degree rape. G.S. 14-21(2). The General Assembly certainly did not want to make such an action against a child, even though unvirtuous, a noncriminal act. It was thus made second degree rape. Force and will of the victim when the victim is a child under the age of twelve have nothing to do with the crime. A child of such age is presumed incapable of consent. State v. Cox, 280 N.C. 689, 187 S.E. 2d 1 (1972). To argue against the instruction on second degree rape, defendant must argue the victim was clearly and without conflict on the evidence within the age proscription and was virtuous. Then, the error in the instruction would be to the benefit and favor of defendant and not, therefore, a ground for relief. See State v. Hall, 293 N.C. 559, 238 S.E. 2d 473 (1977).
[3] In this case defendant was charged with two rapes, one on or about 24 March 1978 and one on or about 28 July 1978. It was the former charge on which defendant was convicted of second degree rape. Of the latter, he was found not guilty. The prosecuting witness could not remember the exact dates of the rapes but instead related one to the purchase of an Easter dress and the other to the summer before school started. The dates in the warrants and indictments were created by the district attorney. Time for the charged offenses is not of the essence in this case as long as the time given for the offense is not at a time when the prosecuting victim is not under the age of twelve. Failure of the State to prove the crime was committed on the very date given in the indictment is not fatal to the case against the defendant and does not entitle him to nonsuit. State v. King, 256 N.C. 236, 123 S.E. 2d 486 (1962); State v. Gillyard, 246 N.C. 217, 97 S.E. 2d 890 (1957). An exception to this rule results where the defense is one of alibi. In such a case, where alibi is used, the State cannot reopen the case and introduce evidence that the offense was committed on another date. State v. Whittemore, 255 N.C. 583, 122 S.E. 2d 396 (1961). The trial judge recognized this rule of law and its exception. In his instruction, he recognized the defendant’s evidence of alibi to the 28 July charge of rape and held the State to prove that offense occurred on 28 July or 29 July. This was proper. No *486alibi was offered for the 28 March defense. Rather, defendant’s evidence tended to show that on or about that date, he was with the prosecuting witness but that someone else was also always with them. The trial judge properly instructed on the facts and circumstances arising from this case.
[4] After the defense rested, the State put on rebuttal evidence. Linda Harris was called as a witness and testified, in part, that in November or December, 1978, the prosecuting witness told her defendant had had sex with her. This corroborated the testimony of the prosecuting witness and a limiting instruction to that effect was given. Defendant now argues that this introduced evidence of another new accusation of rape that was without a time frame reference. The testimony did not rebut any alibi of defendant. There is no indication from the testimony that it was about anything other than the crimes of which defendant was then charged. The limiting instruction on corroboration properly placed the testimony in context for the jury.
No error.
Judges Hedrick and Clark concur.