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§ 550. RAPE is the act of a man having unlawful carnal knowledge of a woman without her conscious and voluntary permission.' How far, if such permission be given, the fact that it was obtained by fraud or through the woman's ignorance affects the case, is hereafter discussed. “Forcibly,” is frequently use force introduced as essential to the offence ;3 but it is not (except so far as force is an ordinary incident of the act of coition) requisite in those cases in which acquiescence is caused by fraud or stupefaction. But “forcibly” must be alleged in the indictment; though in the cases just referred to the allegation is satisfied by mere proof of penetration. The intent to use force, however, in case fraud or stupefaction should fail, is essential to the offence.


I. DEFENDANT'S CAPACITY TO COMMIT OFFENCE. $ 551. At common law a boy under fourteen is irrebuttably presumed to be incapable of committing a rape, though in several States in this country this presumption is held to

fourteen, be rebuttable. Whether a boy under fourteen is indicta- boy preble at common law for an assault with intent to ravish, be incapahas been disputed. The affirmative has been maintained offence.




See Steph. Dig. Crim. Law, c. v. State, 50 Ga. 79, 1873; McNair v. xxix. ; Walton v. State, 29 Tex. App. State, 53 Ala. 453, 1875; Dawson v. 163, 1890.

State, 29 Ark, 116, 1874; Bradley v. · Infra, & 559.

State, 32 Ibid. 704, 1878; Hull v. State, 1 East P. C. 434; 4 Bl. Com. 210; 22 Wis. 580, 1868 ; Stephens v. State, 1 Russ. on Cr. (9th Am. ed.) 904; 107 Ind. 185, 1886 ; White v. State, Bradley v. State, 32 Ark. 704, 1878. 136 Ind. 308, 1894. For other cases,

* See infra, & 563; Pomeroy v. State, see infra, & 563. 94 Ind. 96, 1883.

? 1 Hale, 631 ; Lewis C. L. 558; R. , Infra, & 573. See Com. v. Fogerty, v. Eldershaw, 3 C. & P. 396, 1828; R. 8 Gray, 489, 1857; Jones v. State, 10 v. Groombridge, 7 Ibid. 582, 1836; R. Tex. App. 552, 1881.

v. Philips, 8 Ibid. 736; R. v. Jordan, Infra, & 563; R. v. Lloyd, 7 C. & 9 Ibid. 118, 1839; R. v. Brimilow, P. 318, 1836; R. v. Stanton, 1 C. & K. Ibid. 366, 1840 ; State v. Sam, Wins415, 1844; R. v. Case, 1 Den. C. C. ton, (N. C.) 300, 1864; State v. Pugh, 580, 1850; 4 Cox C. C. 220; R. v. 7 Jones, (N. C.) 61, 1859; Stephen v. Wright, 4 F. & F. 967, 1866 ; Com. v. State, 11 Ga. 225, 1852; McKinny v. Merrill, 14 Gray, 415, 1860; Smith v. State, 29 Fla. 565, 1892. See supra, State, 12 Ohio St. 466, 1861; State v. & 69. Hagerman, 47 Iowa, 151, 1877; State People v. Randolph, 2 Parker C. v. Erickson, 45 Wis. 86, 1878; Taylor R. 174, 1855; People v. Croucher, 2 VOL. 1.-33





in Massachusetts ;' and in other States it has been held that while there is a presumption of incapacity, this presumption may be overcome by counter proof.? But the prevalent opinion is that in such cases the presumption of incapacity is irrebuttable.?

But whatever may be the limits of the defendant's capacity as a direct agent, it is clear that when concerned with others he may, when otherwise penally responsible, be convicted as principal in the second degree;" or of a simple assault, even on evidence of rape. $ 552. Impotency is a sufficient defence to an indictment for the

consummated offence, though not for an assault with inImpotency is a de- tent. The subject of impotency is fully considered in

another work.?

§ 553. Though a husband cannot be convicted of the Husband may be in- offence, he may be tried as the accessary of another dicted as

therein, and the wife is a competent witness against both to prove the violence.



Wheeler C. C. 42, 1800 ; Williams v. ilow, Ibid. 366, 1840; State v. Sam, State, 14 Ohio, 222, 1846 ; Smith v. Winston, (N. C.) 300, 1864; State r. State, 12 Ohio St. 466, 1861; Hilta- Pugh, 7 Jones, (N. C.) 61, 1869; State biddle v. State, 35 Ibid. 52, 1878; v. Handy, 4 Harring. 566, 1845; and Wagoner v. State, 5 Lea, 352, 1882.

see supra, & 69. Whether absolute The section in the Code of Criminal legal incapacity bars an indictment Procedure (74 0. L. 349, & 31), dis- for an attempt is considered elsepensing with proof of emission, has no where. Supra, && 183-4. relation to capacity ; and hence it does That the defendant's good characnot so enlarge the meaning of the stat- ter may be considered by the jury, see utory provision in relation to rape (74 State v. Witten, 100 Mo. 525, 1890; 0. L. 245, & 9) as to include persons Lincecum v. State, 29 Tex. App. 328, not theretofore amenable to that pro- 1890. vision. If it appear, on the trial of 41 Russ. on Cr. 921 et seq. (9th one charged with rape, that he is a Am. ed.). boy under fourteen years of age, the 5 R. v. Eldershaw, supra; State r'. burden is on the State to prove Pugh, supra ; R. v. Phillips, 8 C. & capacity to commit the crime. Hilta- P. 736, 1839. biddle v. State, 35 Ohio St. 52, 1878. * See supra, & 184; Nugent v. State, See criticism in 10 Weekly Bulletin, 18 Ala. 521, 1850. 222.

3 Whart. & St. Med. Jur. 82 201 et 1 Com. v. Green, 2 Pick. 380, 1824. seg.

2 People v. Randolph, 2 Park. C. R. 8 See on this point remarks of Sir 174, 1855.

J. Hannen, in S. v. A., 39 L. T. (N. 3 R. v. Eldershaw, 3 C. & P. 396; S.) 128, 1878. R. v. Groombridge, 7 Ibid. 582, 1836; 1 Hale, 629; Lord Audley's Case, R. v. Philips, 8 Ibid. 736, 1839; R. v. 12 Mod. 340, 454, 1700; 1 St. Trials, Jordan, 9 Ibid. 118, 1839; R. v. Brim- 387; 1 Stra. 633.



§ 553 a. All concerned as assistants may be convicted as principals in the second degree; though only the actual perpe

All assisttrator can be charged as principal in the first degree. ants

are A woman assisting may be charged as principal in the principals second degree.?




$ 554. “A very considerable doubt,” remarks Mr. East, “having arisen as to what shall be considered sufficient evidence of the actual commission of this offence, it is necessary to enter into an inquiry which would otherwise be offensive to decency.

PenetraConsidering the nature of the crime, that it is a brutal tion must

be proved, and violent attack upon the honor and chastity of the but not weaker sex, it seems more natural and consonant to those sentiments of laudable indignation which induced our ancient lawgivers to rank this offence among felonies, if all further inquiry were unnecessary after satisfactory proof of the violence having been perpetrated by actual penetration of the unhappy sufferer's body. The quick sense of honor, the pride of virtue, which nature, to render the sex amiable, hath implanted in the female heart, as Mr. Justice Foster has expressed himself, is already violated past redemption, and the injurious consequences to society are in every respect complete. Upon what principle and for what rational purpose any further investigation came to be supposed necessary, the books which record the dicta to that effect do not furnish a trace." The doubts, however, that existed in England have been put to rest by the 9 Geo. IV. c. 31, making the least penetration enough. In this country the proof of emission seems rarely to have been required ; and, aside from statute, the prevalent opinion here is that as the essence of the crime is the violence done to the person and feelings of the woman, which is completed by penetration without emission, it will be sufficient to prove penetration no matter how slight.' In Ohio proof of emission was once but is no longer re


Infra, 8 569; Kessler v. Com., 12 the girl to aid and abet a male person Bush, 18, 1876. See State v. Com- in committing, or to incite him to stock, 46 Iowa, 265, 1877.

commit, the misdemeanor of having State v. Jones, 83 N. C. 605, 1880. unlawful carnal knowledge of her. But under Section 5 of the Criminal Queen v. Tyrrell, [1894] 1 Q. B. 710. Law Amendment Act (1885), forbid- 3 See State v. Shields, 45 Conn. 256, ding illicit intercourse with girls under 1877; Powers v. Sullivan, Addis. 143, sixteen, it is not a criminal offence for 1793; Comstock v. State, 14 Nebr.

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quired. In New York, by statute, penetration alone is made sufficient to support conviction, without emission.”

$ 555. But while the slightest penetration is sufficient, there must be proof beyond reasonable doubt of some, though the proof of this may be inferred from circumstances aside from the statement of the party injured. It must be shown, to adopt the phraseology of Tin

205, 1883. See State v. Le Blanc, 1 Cr. 371, 1892; Rodgers v. State, 30
* Treadw. 354; 3 Brev. 339, 1813; Tay- Tex. App. 510, 1891 ; State ». Dalton,
lor v. State, 111 Ind. 279, 1887; State 106 Mo. 463, 1891. See 3 Whart. & St.
v. Depoister, 21 Nev. 107, 1891; Lu- Med. Jur. 22 593 et seq.
jano v. State, 32 Tex. Cr. 414, 1893. • See R. v. Lines, 1 C. & K.393, 1844;

| Williams v. State, 14 Ohio, 222, State v. Hodges, Phil. Law, (V. C.) 1846; Blackburn v. State, 22 Ohio St. 231, 1867, (overruling State v. Gray, 8 102, 1871, in which latter case the Jones, 170, 1860); Brauer v. State, 25 court questioned the former ruling. Wis. 413, 1870; State v. Tarr, 28 Iowa, See State v. Hargrave, 65 N. C. 466, 397, 1869; Taylor v. State, 111 Ind. 1871, holding this to be necessary, 279, 1887. Medical testimony is adwhich proof is now dispensed with missible both in proof and in rebuttal both in Ohio and North Carolina by of penetration. State v. Watson, 81 statute. Supra, 8 551.

Iowa, 380, 1890. Very questionable When, on an indictment for forni- is the ruling on this point in the recation and bastardy, the witness testi- markable case of Com. v. Beale, Phila. fied, “He forced me; he worked him- Q. S. Nov. 1854, reported more fully self under me, and in that way forced in 3 Whart. & St. Med. Jur. 245, me; I did not give my consent;" 596, 612, and also in the 8th edition upon a demurrer to this evidence, it of the present work, 8 555. was held that it was not such as would Mere proof by the prosecutrix of merge the offence charged in the crime resistance and then of unconsciousof

rape, but that the defendant might ness on the part of the prosecutris be legally convicted of fornication. (there being no other evidence) is not Com. v. Parr, 5 W. & S. 345, 1843. enough to sustain a conviction. Wes

People v. Crowley, 102 N. Y. 234, ley v. State, 65 Ga. 731, 1880. 1886 ; 8. C. 23 N. Y. Week, Dig. 24, In Connecticut a conviction has 1886.

been sustained on the uncorroborated 3 R. v. Russen, 1 East P. C. 438; testimony as to penetration of a young R. v. Allen, 9 C. & P. 31, 1839; R. v. child. State v. Lattin, 29 Conn. 389, Jordan, Ibid. 118, 1839; Pennsylva- 1860. See R. v. Rearden, 4 F. & F. nia v. Sullivan, Addis. 143, 1793; 76, 1864; People v. Tyler, 36 Cal. 522, State v. Le Blanc, 3 Brev. 339, 1813; 1869. 1 Treadw. 354, 1813; Waller v. State, It was formerly thought that if the 40 Ala. 325, 1867; Davis v. State, 43 female conceived, this was evidence Tex. 189, 1875; Thompson v. State, of consent which negatived rape. Ibid. 583, 1875; Ward v. State, 12 This notion, however, has long since Tex. App. 174, 1882; Ledbetter v. been exploded. 1 Hale, 631 ; 1 HawState, (Tex.) 26 S. W. Rep. 725, 1894; kins, c. 16, s. 8; State v. Knapp, 45 White v. Com., (Ky.) 28 S. W. Rep. N. H. 148, 1863. On the other hand, 340, 1894; Massey v. State, 31 Tex. in this country, it has been expressly


dal, C. J., and afterward of Williams, J., that the private parts of the male entered at least to some extent in those of the female. At one time it was even thought that there must be proof that the hymen was ruptured,' though this is no longer considered necessary.” The law may now indeed be considered as settled that while the rupturing of the hymen is not indispensable to a conviction, there must be proof of some degree of entrance of the male organ“ within the labia of the pudendum ;"'* and the practice seems to be, to judge from the cases just cited, not to permit a conviction in those cases in which it is alleged violence was done, without medical proof of the fact, whenever such proof is attainable. It seems but right, both in order to rectify mistakes and to supply the information necessary to convict, that the prosecutrix should be advised of this at once, so that she can take necessary steps to secure such an examination in due time. If this test be generally insisted upon, there is no danger of any conviction failing because of non-compliance with it; and on the other hand many mistaken prosecutions will be stopped at the outset.


$ 556. The term "against her will” was used in the old “ Against statutes convertibly with “without her consent ;” and her will”

is equivait may now be received as settled law that rape is proved lent to when carnal intercourse is effected with a woman without her conher consent, although no positive resistance of the will

" without


held that an introduction of an aver- 3 R. v. Hughes, 9 C. & P. 752, 1841. ment that the prosecutrix was gotten See R. v. McRue, 8 Ibid. 641, 1838. with child does not vitiate the indict- * R. v. Lines, 1 C. & K. 393, 1844; ment. U. S. v. Dickinson, Hempst. R. v. Jordan, 9 C. & P. 118, 1839. See C. C. 1, 1820. This case was tried 3 Whart & St. Med. Jur. 249, 593 et before the territorial court of Arkan- seq.; Stephen v. State, 11 Ga. 225, 1852. sas, in 1820. An extraordinary feat- 5 As to the admissibility of medical ure of the case is, that the defendant testimony in Nevada, see State v. Dewas sentenced to be castrated. He poister, 21 Nev. 107, 1891 ; West v. was pardoned, however, and the sen- State, (Tex.) 21 S. W. Rep. 686, 1893; tence consequently was never exe- Rogers v. State, 30 Tex. App. 462, cuted.

1891. R. v. Allen, 9 C. & P. 31, 1839; 6 See 3 Whart. & St. Med. Jur. 88 233 R. v. Jordan, Ibid. 118, 1839. et seq., 593 et seq.; infra, & 565. See

· R. v. Gammon, 5 C. & P. 321, White v. Com., (Ky.) 28 S. W. Rep. 1832. See 3 Whart. & St. Med. Jur. 340, 1894. * 249, 593.

? See State v. Jackson, 46 La. An.

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