1. Where the female is under the age of ten years. Same. 2. Where she is incapable, through lunacy or any other unsoundness of mind, whether temporary or permanent, of giving legal consent.

3. Where she resists, but her resistance is overcome by force or violence.

4. Where she is prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution; or by any intoxicating, narcotic, or anæsthetic substance, administered by or with the privity of the accused.

5. Where she is, at the time, unconscious of the nature of the act, and this is known to the accused.

6. Where she submits, under a belief that the person committing the act is her husband, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce such belief.

NOTE. This section is an extension of the generally received definition of rape. East defines this offense to be "the unlawful carnal knowledge of a woman by force and against her will."-1 East P. C., p. 434. Blackstone defines it in the same language, omitting the word "unlawful."-4 Blackst. Comm., p. 210. And this is believed to be substantially the definition given by the leading writers on criminal law, except that some of the later decisions indicate a disposition to substitute the idea "without her consent," for "against her will."-Reg. vs. Camplin, 1 Cox Cr. Cas., p. 220; 1 Den. C. C., p. 89; 1 Carr. & K., p. 746; Reg. vs. Sweenie, 8 Cox Cr. Cas., p. 223; 3 Irvine, p. 159. The Code presents a definition which includes the various instances which have been adjudged to constitute the offense, with some others which have been held not to fall within the limited definition of the common law authorities, but to which the same penalties ought to be extended.

Subd. 1.-This provision embodies the well settled rule of the existing law; that a girl under ten years of age is incapable of giving any consent to an act of intercourse which can reduce it below the grade of rape. Stephen vs. State, 11 Ga., p. 225; State vs. Farmer, 4 Ired., p. 224; 4 Blackst. Comm., p. 212.

man

Subd. 2.-It is probable that an act of intercourse with a woman above the age of ten years, but mentally incapable of giving legal consent, would be held to be rape. In England it has been held that under the statute, 13 Edw. I, Chap. 34-which provides that if a do ravish a woman when she did not consent, neither before nor after, he shall, etc.Forcible intercourse with a female, incapable, through imbecility of mind, of giving legal consent, is rape; although she was above ten years of age, and offered no resistance.-Reg. vs. Fletcher, 8 Cox Cr. Cas., p. 131; 5 Jur. (N. S.), p. 179. See, also, in support of the same principle, Rex vs. Ryan, 2 Cox Cr. Cas., p. 115; State vs. Cron, 10 West. L. J., p. 501; McNamara's Case, Oakley, p. 521.

Subd. 3, and the first clause of Sec. 4, embrace the ordinary cases of the offense, and require no special remark. As to resistance overcome by force, see Charles vs. State, 6 Engl., p. 389; State vs. Jim, 1 Den., p. 142; Pollard vs. State, 2 Clarke, p. 567; Myatt vs. State, 2 Swan., p. 394; Lewis vs. State, 30 Ala., p. 54; State vs. Blake, 39 Me., p. 322; Barney vs. People, 22 Ill., p. 160. As to resistance overcome by fear, see Pleasant vs. State, 8 Engl., p. 360; Reg. vs. Hallett, 9 Carr. & P., p. 748; Reg. vs. Day, id., p. 722; Wright vs. State, 4 Humph., p. 194.

Subd. 4, second clause, is intended to cover cases where the female is rendered temporarily incapable of giving consent by means of liquor or drugs. In Reg. vs. Camplin, 1 Cox Cr. Cas., p. 220; 1 Den. C. C., p. 89; 1 Carr. & K., p. 746, the jury found that the prisoner gave liquor to the female for the purpose of exciting her passions and inducing her consent; it had, however, the effect of rendering her drunk and insensible; in which condition he violated her. This was held to be rape; on the ground that the connection was accomplished without the consent and against the will of the female, which was all that was necessary to constitute the offense. Actual resistance on her part was not necessary to be shown. A number of similar instances of the commission of the offense are referred to in Wharton & St. Med. Jur., Secs. 441-443. This clause is not limited to cases in which the stupefying drug is administered with intent to facilitate a rape. Cases in which the drug is administered from proper motives, but the accused afterwards avails himself of the helplessness of the subject to commit the offense, are designed to be included. It is, indeed, doubtful whether, in the case of Reg. vs. Camplin, above cited, a convic

tion would have been sustained independent of the circumstances, upon which some stress is laid by members of the Court, that the liquor was given with an unlawful intent, and that the prosecutrix indicated dissent by refusing the prisoner's solicitations as long as she had the power.

Subd. 5.-It can but rarely happen that the subject of the offense consciously submits to the act uncompelled, without being aware of its nature; yet some cases of this sort are reported. In Reg. vs. Case, 4 Cox Cr. Cas., p. 220, the defendant was a medical practitioner, and the prosecutrix was a young girl placed under his care for medical treatment. She made no resistance to the connection, owing to a belief, from representations of defendant, that she was submitting to medical treatment for the ailment under which she labored. Held, upon an indictment for assault, that the accused was rightly convicted. Her submission to the act under an impression that it was something necessary to her case was not such a consent as relieved the defendant from criminal responsibility. Whether it is to be regarded as possible that a connection should be accomplished during the unconsciousness of natural sleep, without arousing the female, is said to be an open question in medical jurisprudence.-See Beck's Med. Jur., 7th ed., p. 117; Tayl. Med. Jur., 5th ed., p. 654; Whart. & St. Med. Jur., p. 336, Secs. 440, 441; Montgomery on Pregnancy, 2d ed., p. 361; Bundelius, pp. 96, 99. Whether an unlawful connection so accomplished should be deemed, if proved, to amount to rape has been differently decided by the Courts.-See Reg. vs. Sweenie, 8 Cox Cr. Cas., p. 223; 3 Irvine, p. 159, in the affirmative, and Field's Case, 4 Leigh, p. 648; Charles vs. State, 6 Engl., p. 389, in the negative. It was thought best by the Commissioners, on a review of the authorities, not to specify this as one of the cases embraced. The danger of giving rise to unjust prosecutions in cases where the sleep was merely simulated, is to be weighed against that of the commission of the offense where the sleep is genuine.

Subd. 6.-Several cases are to be found in the reports, in which a criminal connection has been accomplished by means of personating the husband of the female. In England this is held not to be rape.-Reg. vs. Clarke, Dearsly, p. 397; 6 Cox Cr. Cas., p. 412; 18 Jur., p. 1059; 29 Eng. L. Eq., p. 542; Rex vs. Jackson, Russ & Ry., p. 487; Reg. vs. Williams, 8 Carr & P., p. 286;

When

physical ability

must be proved.

Penetration sufficient.

Punishment of rape.

Abduction

of women.

Reg. vs. Saunders, id., p. 265. In Scotland it has been held to be rape.-Fraser's Case, Arkley, p. 329; Reg. vs. Sweenie, 8 Cox Cr. Cas., p. 223. In this country the question has been differently decided in the different States.-See Wyatt vs. State, 2 Swan., p. 394; Lewis vs. State, 30 Ala., p. 54; People vs. Bartow, 1 Wheel. Cr. Cas., p. 378, following the English view; and State vs. Shepard, 7 Conn., p. 54; Anon., 1 Wheel. Cr. Cas., p. 381, note, adopting the contrary. Without reviewing the reasoning of these cases, or questioning the soundness of the English decisions considered as exposition of the existing law, it is regarded that this offense fully partakes of the guilt of rape, and should share its punishment in all instances in which any means are used by the accused to create a belief that he is the husband.

262. No conviction for rape can be had against one who was under the age of fourteen years at the time of the act alleged, unless his physical ability to accomplish penetration is proved as an independent fact, and beyond a reasonable doubt.

NOTE.-Many of the authorities lay down the rule as conclusive that incapacity is to be presumed when the accused is under fourteen years of age.-See 2 Bish. Cr. L., Sec. 936. In People vs. Randolph, 2 Park. Cr., p. 174, and Williams vs. State, 14 Ohio, p. 222, the presumption has been held capable of being rebutted by proof of actual capacity in the individual.

263. The essential guilt of rape consists in the outrage to the person and feelings of the female. Any sexual penetration, however slight, is sufficient to complete the crime.

NOTE.-Robertson's Case, 1 Swint., p. 98.

264. (§ 47.) Rape is punishable by imprisonment in the State Prison not less than five years.

NOTE-Stats. 1855, p. 105, Sec. 1.

265. Every person who takes any woman unlawfully, against her will, and by force, menace, or duress, compels her to marry him, or to marry any other person, or to be defiled, is punishable by imprisonment in

the State Prison not less than two nor more than four

teen years.

the

NOTE.-Stats. 1856, p. 131, Sec. 1.

for

266. Every person who inveigles or entices any Seduction unmarried female, of previous chaste character, under purposes of prostituage of twenty-five years, into any house of ill-fame tion. or of assignation, or elsewhere, for the purpose of prostitution; and every person who aids or assists in such abduction for such purpose; and every person who, by any false pretenses, false representation, or other fraudulent means, procures any female to have illicit carnal connection with any man, is punishable by imprisonment in the State Prison not exceeding five years, or by imprisonment in a County Jail not exceeding one year, or by a fine not exceeding one thousand dollars, or by both.

NOTE. The following statutes on kindred offenses are here inserted as supplementing this Code.-Stats. 1871-2, p. 184:

An Act to punish seduction.

[Approved March 1, 1872.]

[Enacting clause.]

SECTION 1. Every person who inveigles or entices any unmarried female, of previous chaste character, under the age of eighteen years, into any house of ill fame, or of assignation, or elsewhere, for the purpose of prostitution, and every person who aids or assists in such abduction for such purpose, and every person who by any false pretenses, false representation, or other fraudulent means, procures any female to have illicit carnal connection with any man, is punishable by imprisonment in the State Prison not exceeding one year, or by a fine not exceeding one thousand dollars, or by both.

This is identical with the Code section, except in the age of the female and term of the imprisonment.

Stats. 1871-2, p. 380:

An Act to punish adultery.

[Approved March 15, 1872.]

[Enacting clause.]

SECTION 1. Every person who lives in a state of open and notorious cohabitation and adultery is guilty of a misdemeanor, and is punishable by a fine not

Am? 1874