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can be shown. Such being the law, the cases will be now considered specifically.
$ 557. Consent, however reluctant, if free, negatives rape; but Acquies
where the woman is insensible through fright, or where
she ceases resistance under fear of death or other great through fear is not harm (such fear being gauged by her own capacity), the
consummated act is rape. Thus where a father by his
547, 1894. That the jury must be which show that having connection with satisfied beyond reasonable doubt that a woman whilst asleep, or by a pouer there was no consent, see Com. v. Mc- which induces the woman to suppose that Donald, 110 Mass. 405, 1872; Brown it is her husband, amounts to an assault." v. People, 36 Mich. 203, 1878; State R. v. Lock, 27 L. T. (N.S.) 661, 1872. v. Burgdorf, 53 Mo. 65, 1873; People According to another report (L. R. 2 v. Brown, 47 Cal. 447, 1874; Hollis v. C. C. R. 10), the language of the Chief State, 27 Fla. 387, 1891.
Baron was: “It is much like the case 1 R. v. Fletcher, Bell C. C. 63; 8 of an act done to a person while Cox C. C. 131, 1859; R. v. Camplin, asleep. And although I do not say infra, & 562; State v. Shields, 45 Conn. that connection with a woman in that 256, 1877; Hawkins v. State, (Ind.) 36 state would be rape, it would be an N. E. Rep. 419, 1894; Harvey v. State, assault." And see particularly infra, 53 Ark, 425, 1890; Maupin v. State, ở 577 ; & 278 of the New York Penal (Ark.) 14 S. W. Rep. 924, 1890; and Code of 1882 includes cases of this see an able exposition of the law to class. this effect by Judge Gray in Com. v. See, for a discussion of the law as Burke, 105 Mass. 376, 1870, and cases to consent where the offence is comcited infra, & 855. See, also, R. v. mitted while the victim is asleep, Jones, 4 L. T. (N. S.) 154,1864; as to Mooney v. State, 29 Tex. App. 257, robbery, & 855; 1 Hawk. c. 41; and 1890. on the general question of consent, · Infra, & 577; People v. Dohring, supra, 8% 141 et seq. That the woman 59 N. Y. 374, 1874; State v. Burgdorf, subsequently agreed to receive com- 53 Mo. 65, 1873. See People v. Morpensation for the injury is no defence. rison, 1 Parker C. R. 626, 1854; State State v. Hammond, 77 Mo. 157, 1882. v. Murphy, 6 Ala. 765, 184; Oleson
Kelly, C. B., in 1873, on a crown v. State, 11 Nebr. 276, 1881; Charles case reserved, said: "I think that v. State, 6 Eng. (Ark.) 389, 1859; when a child submits to an act of this Anshicks v. State, 6 Tex. App. 524, kind in ignorance, the offence is simi- 1879; Territory v. Potter, 1 Ariz. 421, lar to that perpetrated by a man who 1883; State v. Nash, 109 N.C. 824, 1891. has connection with a woman while $ See supra, 141 asleep. If that were not an assault, 105, 607; 1 Hawk. P. C. c. 41; 3 our law would be very defective. In Whart. & St. Med. Jur. & 606; R. 6. such a case, consent is out of the ques- Rudland, 4 F. & F. 967, 1866; State tion, for a woman whilst asleep is in v. Ruth, 21 Kans. 583, 1879; Pleasant such a state that she cannot consent, and v. State, 8 Eng. (13 Ark.) 360, 1852; the act of connection with her under the Lewis v. State, 30 Ala. 54, 1859; Sharp circumstances is quite suficient to consti- v. State, 15 Tex. App. 171, 1883; State tute an assault. There are many cases v. Fernald, (Iowa) 55 N. W. Rep. 534,
seq.; Dalt. c.
ferocity establishes “a reign of terror" in his family, and under this power his daughter remains passive while he has carnal intercourse with her, this intercourse, effected by terror, and without consent, is rape. Nor is it necessary that there should be force enough to create “reasonable apprehension of death.” But it is necessary to prove in such case that the defendant intended to complete his purpose in defiance of all resistance.3
It is admissible for the prosecution under this head to give evidence of the defendant's bodily strength, and of the prosecutrix's bodily weakness, but not that the prosecutrix knew of the defendant's bad character.5
While the degree of resistance is an incident by which consent can be determined, it is not in law necessary to show that the woman
1893 ; People v. Flynn, 96 Mich. 276, State, 8 Ohio Cir. Ct. 313, 1894 ; Toul1893; Hollis v. State, 27 Fla. 387,1891; lee v. State, (Ala.) 14 So. Rep. 403, King v. Com., (Ky.) 20 S. W. Rep. 1893; State v. Owsley, 102 Mo. 678, 224, 1892. Whether resistance ceased 1891. because it was useless and dangerous, “It is submitted that the true rule or because the prosecutrix ultimately must be, that where the man is led consented, is for the jury to decide; from the conduct of the woman to beand in the last case to acquit of the lieve that he is not committing a crime rape. R. v. Hallett, 9 C. & P. 748, known to the law, the act of connec1841 ; Turner v. People, 33 Mich. 363, tion cannot under such circumstances 1876; Wright v. State, 4 Humph. 194, amount to rape. In order to consti1843. See supra, 88 140 et seq.; infra, tute rape there must, it would appear, 2576.
| be an intent to have connection with As to provisions of Minnesota stat- the woman notwithstanding her resistute, see State v. Vorey, 41 Minn. 134, ance. In the case of R. v. Urry, tried 1889.
at Lincoln Spring Assizes, 1873, the | R. v. Jones, L. R. 2 C. C. 10; 4 L. above passage was approved of by T. (N. S.) 154, 1861. See, also, R. v. Denman, J. See, also, case cited Woodhurst, 12 Cox C. C. 443, 1871; where Parke, B., says that the guilt Sharp v. State, ut supra ; State v. Wil- of the accused must depend upon the cox, 111 Mo. 569, 1892. But see Ter- circumstances as they appear to him.” ritory v. Potter, 1 Ariz. 421, 1883; Roscoe's Crim. Ev. (ed. of 1878) p. 648; Hammond v. State, (Nebr.) 58 N. W. Hunter v. State, 29 Fla. 486, 1892; Rep. 92, 1894.
Walton v. State, 29 Tex. App. 163, Walter v. State, 40 Ala. 325, 1867. 1890. But see Territory v. Potter, 1 Ariz. * State v. Knapp, 45 N. H. 148, 421, 1883.
1863; Richards v. State, 36 Nebr. 17, Supra, 8 550 ; R. v. Wright, 4 F. 1893; Walton v. State, 29 Tex. App. & F. 967, 1866; Strang v. People, 24 163, 1890. Mich. 1, 1871. See Moore v. State, 79. 5 State v. Porter, 57 Iowa, 691, Wis. 546, 1891; Porter v. State, (Tex.) 1882. 26 S. W. Rep. 626, 1894; Blannett v.
opposed all the resistance in her power, if her resistance was honest, and was the utmost, according to her lights, that she could offer. § 558. The consent of a female of such tender years as to be un
conscious of the nature of the act, or even her aiding the Nor is acquiescence prisoner in the attempt, is no defence ; and in a case be
fore the Court of Criminal Appeal it was held rape by Lord Campbell, C. J., and all the judges, where a man had carnal knowledge of a girl of thirteen, of imbecile mind, and the jury found that it was by force, and without her consent, she being incapable of giving consent, but it was not found to be against her will. In Virginia and Louisiana the rule is applied to girls under twelve,' and in New Jersey to girls under ten years. The
· R. v. Rudland, 4 F. & F. 495, 1865; 1867; O'Meara v. State, 17 Ibid. 515, Com. v. McDonald, 110 Mass. 405, 1867; Moore v. State, Ibid. 521, 1867; 1872; Crockett v. State, 49 Ga. 185, State v. Handy, 4 Harring. 566, 1845; 1873. See Jenkins v. State, 1 Tex. Lawrence v. Com., 30 Gratt. 845, 1878; App. 346, 1876; that rape implies State v. Dancy, 83 N. C. 608, 1880; force in the man and resistance in State v. Cross, 12 Iowa, 66, 1861; the woman, see Mills v. State, 52 Ind. People v. McDonald, 9 Mich. 150, 187, 1875. Cf. People v. Dohring, 59 1861; Stephen v. State, 11 Ga. 225, N. Y. 374, 1874; Hollis v. State, 27 1852; Dawson v. State, 29 Ark. 116, Fla. 387, 1891; Holton v. State, 28 1874; Com, v. Roosnell, 143 Mass. 32, Fla. 303, 1891 ; Rhea v. State, 30 Tex. 1886; People v. Courier, 79 Mich. 366, App. 483, 1891; State v. Patrick, 107 1890; Proper v. State, (Wis.) 55 N.W. Mo. 147, 1891; State v. Murphy, (Mo.) Rep. 1035, 1893; State v. Miller, 42 25 S. W. Rep. 95, 1893; Shields v. La. An. 1186, 1890 ; State v. Jackson, State, 32 Tex. Cr. 498, 1893; State v. (La.) 15 So. Rep. 402, 1894; White t. Shroyer, 104 Mo. 441, 1891; Anderson Com., (Ky.) 28 S. W. Rep. 340, 1891; v. State, 104 Ind. 467, 1885; Huston Warner v. State, 54 Ark. 660, 1891; v. People, 121 Ill. 497, 1887; People v. State v. Miller, 111 Mo. 542, 1892; Connor, 9 N. Y. Sup. 674, 1890; Robertson v. State, 30 Tex. App. 498, Hawkins v. State, (Ind.) 30 N. E. Rep. 1891. As to carnal knowledge of 419, 1894; Hammond v. State, (Nebr.) children, see infra, & 578. 58 N. W. Rep. 92, 1894; Eberhart v. 3 R. v. Fletcher, 8 Cox C. C. 131, State, 134 Ind. 651, 1893; Toullee v. 1859. So, also, State v. Tarr, 28 Iowa, State, (Ala.) 14 So. Rep. 403, 1893. 397, 1869; S. P., Stephen v. State, 11
? R. v. Martin, 9 C. & P. 213, 1840; Ga. 225, 1852. 2 Mood. 123; R. v. Johnson, L. & C. * Lawrence v. Com., 30 Gratt. 815, 632, 1865; 10 Cox C. C. 114. See, on 1878; State v. Tilman, 30 La. An. pt. the same topic, R. v. Reed, 1 Den. C. ii. 1249, 1878. As to Texas, see RusC. 377; 2 C. & K. 957, 1849. Cf. sell v. State, (Tex.) 26 S. W. Rep. 990, Hays v. People, 1 Hill, (N. Y.) 351, 1894; Comer v. State, (Tex.) 20 S. W. 1840; Smith v. State, 12 Ohio St. 466, Rep. 547, 1892. As to Missouri, see
5 Cliver v. State, 45 N. J. L. 46, 1883. See Territory v. Potter, 1 Ariz. 421, 1883.
statutory offence of sexual knowledge of children is hereafter discussed.
$ 559. As to how far acquiescence produced by surprise or fraud will be a defence has been the subject of some fluctuation
Question of of opinion in the English courts. At one time it was acquiesruled that it was not an assault with an intent to commit through a rape for a medical man, under the pretence of adminis- fraud. tering an injection, to induce a woman to kneel down with her face on the bed, and then to attempt sexual connection with her by surprise, there being nothing to show an intent to use force ; but it was said that it would have been rape had the defendant intended to have connection with the prosecutrix by force, and had succeeded. It was afterward held that, when connection with a girl is obtained by inducing her to believe she is at the time submitting to medical treatment, such consent is no defence to an indictment for an assault; nor to an indictment for a rape. But it must be a clear case of ignorance and innocence in the prosecutrix to justify a conviction of rape when connection was obtained by the defendant by such process with her acquiescence, and a conviction of rape cannot be sustained where there is proof of consent given by a weak-minded woman after a mock marriage. The test is, did the woman voluntarily consent, not to something else (e. g., medical treatment), but to sexual intercourse. If she did, this is a defence,
State v. Houx, 109 Mo. 654, 1891 ; In R. v. Flattery, the defendant kept State v. Wilcox, 111 Mo. 569, 1892. a stall in a public market, and proIgnorance by defendant that a girl fessed to give medical and surgical had not reached the statutory age is, advice. He obtained possession of a on statutory prosecutions for abusing girl's person by pretending that he a female child, no defence. Supra, was going to perform a surgical opera288.
tion to cure her of her illness. She · Infra, 2 578.
was nineteen years old, and made a ? R. v. Stanton, 1 C. & K. 415. See, feeble resistance, and only acquiesced to same effect, R. v. Flattery, 13 Cox under the belief that the prisoner was C. C. 388, 1877; Don Moran v. People, treating her medically, and perform25 Mich. 356, 1872; Pomeroy v. State, ing a surgical operation. The court 94 Ind. 96, 1883. See
cases cited he that there was no consent to the infra, 2563.
act of sexual intercourse, and that the * R. v. Case, 4 Cox C. C. 220, 1850; prisoner was guilty of the crime of 1 Den. C. C. 580; 1 Eng. L. & Eq. rape. 544.
5 Walter v. People, 50 Barb. 144, * R. v. Flattery, 13 Cox C. C. 388, 1867; State v. Nash, 109 N. C. 824, 1877; 36 L. T. (N. S.) 32; L. R. 2 Q. 1891. B. D. 410; Eberhart v. State, 134 Ind. 6 Bloodworth v. State, 6 Baxt. 614, 651, 1893.
no matter how much she was imposed upon. The effect of artificial stupefaction will be considered under another head. That an unconscious submission during sleep is rape is now settled.? § 560. In respect, also, to unconsciousness through mental dis
ease, must again be invoked the position, that in cases quiescence of rape,“ without her consent” is to be treated as conthrough
vertible with “ against her will." From this it follows
that carnal intercourse with a woman incapable, from mental disease (whether that disease be idiocy or mania), of giving consent, is rape. But the question as to whether the mental dis
Ibid.; State v. Riggs, 1 Houst. C. or dissent, and that the prisoner had C. 120, 1862; State v. Burgdorf, 53 connection with her without her conMo. 65, 1873; Clark v. State, 30 Tex. sent, it was their duty to find him 448, 1867.
guilty. In this case the poor creature * R.v. Mayers, 12 Cox C.C. 311,1872; was not capable of giving her consent. 3 Whart. & St. Med. Jur. 88 242, 593 As to the cases of Reg. v. Fletcher, I et seq. See infra, & 562. See & 278 of cannot see the distinction between New York Penal Code of 1882, which them in principle.” includes cases of submission through Blackburn, J.: “I am of the same stupor or weakness of mind.
opinion. I agree with the decision in Supra, & 556.
the first case of Reg. v. Fletcher, and * As to idiocy, see this affirmed in think that the correct rule was laid R. v. Pressy, 10 Cox C. C. 635, 1867; down in that case. I do not think R. v. Fletcher, 8 Ibid. 131, 1851; R. v. that the court, in the second case of Barrett, 12 Ibid. 498, 1873; L. R. 2C.C. Reg. v. Fletcher, intended to differ 81; Stephen v. State, 11 Ga. 225, 1852; from the decision in the first case of State v. Tarr, 28 Iowa, 397, 1869; State Reg. v. Fletcher. In all these cases v. Crow, 10 West. L. J. 501, 1853; 3 the question is whether the prosecuWhart. & St. Med. Jur. 37 599 et seq.; trix is an imbecile to such an extent as to mania, R. v. Charles, 13 Shaw's as to render her incapable of giving J. P. 746; as to stupefaction, infra, consent or exercising any judgment 2 562; R. v. Ryan, 2 Cox C. C. 115, upon the matter, or, in other words, is 1846. See as to other mental condi- there sufficient evidence of such an tions, State v. Murphy, (Mo.) 25 S. W. extent of idiocy or want of capacity. Rep. 95, 1893.
In the first case of Reg. v. Fletcher, 8 In R. v. Barrett, 12 Cox C. C. 498, Cox C. C. 134, and also in the present 1873; L. R. 2 C. C. 81, Kelly, C. B., case, there was evidence of such an said: “I am of opinion that the pris- extent of idiocy in the girl as to lead oner, in point of law, was guilty of the jury to believe that she was incathe crime of rape in this case. I pable of giving assent, and that thereentirely concur in the definition of fore the connection was without her the crime of rape, as given by Willes, consent. In the second case of Reg. J., in his direction to the jury, 'that v. Fletcher, L. R. 1 C. C. 39, the eviif the jury were satisfied that the girl dence of that was much less strong, was in such a state of idiocy as to be and the point reserved for the court incapable of expressing either consent was whether the case ought to bave