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$ 577. The question of consent of the party injured as a defence has been already discussed in its general bearings,' and it will be sufficient now to state the conclusions already reached, bars proseblended with the decisions of the courts on the particular knowingly issue now before us. Volenti non fit injuria is the maxim given by generally applicable; but in this relation with qualifica- capable of tions which will now be detailed.

assenting. (a) In rape itself, of which an essential element is the want of consent of the woman, proof of consent necessarily, as has been seen, destroys one of the conditions of the offence. Hence, there can be no assault with intent to commit in cases where consent, by a person capable of consenting is given.?

(6) In the statutory crime of sexual abuse of a child under ten years, non-consent is not an essential element, and hence consent is no defence to an indictment for this offence. And at common law, to an indictment for rape of a child of such tender years as to be incapable of consenting, consent, or even assistance, is no defence.

a rape

Law Rep. 74, 1893; supra, & 566; and nelly, 26 Up. Can. Q. B. 323, 1870; in Hornbeck v. State, 35 Ohio St. 277, Cliver v. State, 45 N. J. L. 46, 1883; 1879, where the woman was an imbe- Com. v. Roosnell, 143 Mass. 32, 1886; cile, and could not be examined as a Comer v. State, (Tex.) 20 S. W. Rep. witness, but made certain declara- 547, 1892; State v. Lacey, 111 Mo. tions shortly after the commission of 513, 1892; Rodgers v. State, 30 Tex. the offence, it was held that such App. 510, 1891. Supra, %% 146–188, declarations could not by themselves 562. Ignorance by the defendant that prove the commission of the offence. the prosecutrix was under the statu? Supra, 146.

tory age is no defence. Supra, & 88. ? R. v. Martin, 9 C. & P. 215, 1840; Under Stat. 33 & 34 Vict. consent of 2 Mood. C. C. 123; R. v. Johnston, L. a person under thirteen to an inde& C. 632, 1865; 10 Cox C. C. 114; R. cent assault is no defence. Infra, v. Wollaston, 12 Ibid. 180, 1872; Peo- & 578. ple v. Bransby, 32 N. Y. 525, 1868; * Hays v. People, 1 Hill, (N. Y.) State v. Picket, 11 Nev. 255, 1876. 351, 1841 ; O'Meara v. State, 17 Ohio But the failure of prosecutrix's wit- St. 515, 1867; Stephen v. State, 11 Ga. ness to appear, or of prosecution to 225, 1855; State v. Johnston, 76 N. C. account for her absence when she was 209, 1877; Pound v. State, (Ga.) 20 equally accessible to the defendant as S. E. Rep. 247, 1894; but see, as qualia witness, is no evidence that no as- fying this, R. v. Read, 1 Den. C. C. sault had been committed. Coleman 377, 1848; 3 Cox C. C. 266; R. v. v. State, 111 Ind. 563, 1887. See, how- Cockburn, 3 Ibid. 543, 1849; People ever, Stephens v. State, 107 Ind. 185, v. McDonald, 9 Mich. 150, 1861; and 1886; also, Whitcher v. State, 2 Wash. R. v. Martin; R. v. Johnston, supra, as 286, 1891. Supra, & 188.

to children not positively incapable 3 R. v. Beale, 10 Cox C. C. 157, of assent. 1865; L. R. 1 C. C. 10; R. v. Con



But a child of over seven years is not to be arbitrarily ruled to be incapable of consent.

(c) An indictment for assault with intent to ravish may be sustained, when the object of the assault was incapable of assent. And this applies to cases where such incapacity arises from extreme infancy, or from idiocy or mania,' or from intoxication, whether by alcoholic liquor or by opiates. With young girls it is for the jury to consider whether the supposed assent was not the result of fear, or, in cases of assault, of confusion.

(d) It seems, also, that consent is no defence to assault if the act is perpetrated with unnecessary violence, or if the woman does not know that what is proposed to her is the sexual act; as in the case of the patient who supposed that the act was one simply of medical treatment. In such cases there can be a conviction for the assault; but there can be no conviction of the assault with intent to ravish, if there were intelligent submission, unless the jury believe that the intent was to use force if persuasion failed.9

(e) If the defendant intended to use force to the end, and the woman, who for a time resisted, ultimately assented, the defendant may be convicted of an assault with intent to commit a rape, or of an attempt.10


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* R. v. Read, ut supra; R. v. Road- course, under the belief that the deley, 14 Cox C. C. 463, 1880; 45 L. T. fendant was her husband, was not an (N. S.) 515.

assault with intent to commit a rape. Supra, $ 562; and see, particu- But see supra, & 561. larly, R. v. Lock, L. R. 2 C. C. 10, 8 R. v. Case, 4 Cox C. C. 220, 1850 ; 1871; State v. Johnston, 76 N. C. 209, 1 Den. C. C. 580; R. v. Flattery,

13 1877; though see State v. Pickett, 11 Cox C. C. 388, 1877; R. v. Stanton, 1 Nev. 255, 1876.

C. & K. 415, 1844; Eberhart v. State, 3 Supra, 560. See R. v. Connelly, 134 Ind. 651, 1893. Supra, $ 559. 26 Up. Can. Q. B. 323, 1870, where . Ibid. Supra, & 550; Walter . Hagarty, J., argues that mere ani- People, 50 Barb. 144, 1867 ; Com. t. mal consent in such case defeats Fields, 4 Leigh, 648, 1832; Pleasant prosecution.

v. State, 8 Eng. (13 Ark.) 360, 1853 ; * Supra, 8% 150, 562.

Clark v. State, 30 Tex. 448, 1867. As 5 R. v. Day, 9 C. & P. 722, 1841; to fraud, see R. v. Bennett, 4 F. & F. R. v. McGavaran, 6 Cox C. C. 64, 1105, 1866. 1852; R. v. Fick, 16 Up. Can. C. P. 10 Supra, & 141, 181, 188; State v. 379, 1860.

Hartigan, 32 Vt. 607, 1860; People r. Infra, & 636.

Bransby, 32 N. Y. 525, 1868; State r. * Supra, %% 559, 561. See State v. Cross, 12 Iowa, 66, 1861. See R. v. Brooks, 76 N. C. 1, 1877, where it was Hallett, 9 C. & P. 748, 1841, and cases held that an attempt to induce a cited supra, (187; Proctor v. Com., woman to consent to sexual inter- (Ky.) 20 S. W. Rep. 213, 1892.

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(f) And so, also, where the defendant, before consummating his purpose, was driven or frightened off.?


§ 578. By statutes in England and in this country the carnal knowledge, even with the consent, of children,” is made, This is a with varying limits, a statutory offence. At common law statutory the following positions may be laid down:

(1) When the child is incapable of consenting, or when the consent is to something else than sexual intercourse, the offence is rape."

(2) When the child intelligently consents, this is a misdemeanor at common law, when not so by statute; while by statute in some jurisdictions it is a felony.“

In many jurisdictions the question of consent is settled by the adoption of statutes providing that carnally knowing a female under the age of (ten), or carnally knowing a woman over that age against her will, shall be, etc. As has been already seen,


See supra, 88 141, 181, 188; State was no defence; supra, & 88); State v. v. Elick, 7 Jones, (N. C.) 68, 1859; Tilman, 30 La. An. Pt. ii. 1249, 1878; Lewis v. State, 35 Ala. 380, 1862. See Stephen v. State, 11 Ga. 225, 1855 R. v. Wright, 4 F. & F. 967.

(holding that not only infancy, but See McGuff v. State, 88 Ala. 147, feeble-mindedness, makes consent in1889; Holton v. State, 28 Fla. 303, operative); Cliver v. State, 45 N. J. L. 1891; State v. Harney, 101 Mo. 470, 46, 1883, where the limit is ten years; 1890; State v. Houx, 109 Mo. 654, Territory v. Potter, 1 Ariz. 421, 1883. 1892; State v. Wilcox, 111 Mo. 569, Consent and bad repute of child under 1892.

sixteen years a defence to charge of That “child under the age of four- rape. Com. v. Allen, 135 Pa. 483, teen years” includes every female 1890; People v. Mills, 94 Mich. 630, child under fourteen years, whether 1893. See, as to consent of infants, or not she has reached a state of supra, 8 558. puberty, see People v. Miller, 96 Mich. • Supra, & 572. 119, 1893.

6 But see Com. v. Roosnell, 143 As to indictment under Alabama Mass. 32, 1886. As to distinction bestatute, see Toullee v. State, (Ala.) 14 tween rape and enticing female child So. Rep. 403, 1893.

for purposes of prostitution in PennSupra, 2 558.

sylvania, see Com. v. Fowler and AdCom. v. Bennett, 2 Va. Cas. 235, ler, 44 Leg. Int. 482, 1887. On the 1820; Lawrence v. Com., 30 Gratt. question of consent of female under 845, 1878, (where it was also held that statutory age in Kansas, see State v. under the Virginia statute, making Woods, 49 Kans. 237, 1892. That consent no defence with girls under whether she consented or resisted is twelve, mistake as to the girl's age immaterial, see Davis v. State, 31 VOL. 1.-35



where a severer penalty is assigned in cases where the person ravished is under a certain age, the indictment in order to sustain the severer penalty must specify the age. Without such specification, however, the conviction can be for the offence of rape, and as has been seen, the limitations as to age may be rejected as surplusage, and so may terms which, though descriptive of rape (e. 9., " force," “against the will,” etc.), are not necessary ingredients of the statutory offence. 4

“ Carnal knowledge,” under the statute, is to be construed in the same sense as the same words are construed in reference to rape. The male organ must be introduced to some extent within the lips of the female, though the slightest degree of penetration will be sufficient.

Nebr. 247, 1891; Hall v. State, (Nebr.) Miss. 501, 1871 ; Hall v. State, (Nebr.)
58 N. W. Rep. 929, 1894; Toullee v. 58 N. W. Rep. 929, 1894.
State, (Ala.) 14 So. Rep. 403, 1893. + State v. Black, 63 Me. 210, 1874;
As to distinction between rape and McComas v. State, 11 Mo. 116, 1847;
carnal knowledge of a female child State v. Jaeger, 66 Ibid. 173, 1877.
under the age of puberty, see Warner That it is enough to aver did have
v. State, 54 Ark. 660, 1891.

carnal knowledge of," etc., see People
· State v. Worden, 46 Conn. 349, v. Mills, 17 Cal. 276, 1861.
1878; Hall v. State, (Nebr.) 58 N. W. 6 R. v. Lines, 1 C. & K. 393, 1844;
Rep. 929, 1894, and cases cited in Brauer v. State, 25 Wis. 413, 1870;
next note.

People v. Courier, 79 Mich. 366, 1890. · R. v. Martin, 9 C. & P. 215, 1840; As to admissibility of medical testiR. v. Nichols, 10 Cox C. C. 476, 1867; mony, see State v. Watson, 81 Iowa, R. v. Dicken, 14 Ibid. 8, 1877; Com. 380, 1890. As to lesser offence of v. Sugland, 4 Gray, 7, 1855; State v. taking indecent liberties with child, Gaul, 50 Conn. 579, 1883; O'Meara v. see People v. Hicks, 98 Mich. 86, 1893, State, 17 Ohio St. 515, 1867; State v. and other cases cited supra, $ 555. Storkey, 63 N. C. 7, 1868; State v. That mistake as to the girl's age is no Jackson, 76 Ibid. 209, 1877; State v. defence has been already seen, supra, Staton, 88 Ibid. 654, 1883; Vasser v. & 88. The statutory limitations as to State, 55 Ala. 264, 1876.

age of consent have also been pre* Supra, 572; Mobley v. State, 46 viously noticed, supra, 2 558.



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Failure to Instruct as to Character of Force Necessary. It was held error for the court to fail to instruct the jury as to the char. acter of the force necessary to be used to accomplish rape. Walton v. State, 29 Tex. App. 163, 1890 ; Shields v. State, 32 Tex. Cr. 498, 1893.

Failure to make Immediate Outcry an Important Circumstance. The defendant requested the court to charge: “If the jury believe from the evidence that, at the time the offence is alleged to have been committed, the prosecuting witness made no outcry, and did not, as soon as an opportunity offered, complain of the offence to others, but concealed it for a considerable length of time thereafter, then the jury should take this circumstance into consideration with all the other evidence in determining the guilt or innocence of the defendant, and whether in fact a rape was committed or not.” Refused. Held error. State v. Witten, 100 Mo. 525, 1890.

Defendant requested the court to charge: “That in case of rape it devolves upon the State to show, before a conviction can be had, that the party ravished made complaint thereof immediately after being ravished, or as soon thereafter as such party had opportunity so to do. Now the court instructs the jury that no such complaint by the prosecutrix has been proven in this case.” Refused. Held error under the evidence of the case. State v. Patrick, 107 Mo. 147, 1891.

Instruction as to Penetration in Case of Infant. The court charged the jury : “If they have a reasonable doubt as to whether or not the defendant is guilty of rape as above defined, but believe to the exclusion of reasonable doubt that he had carnal knowledge of said female with her consent, they will find him not guilty of rape, but guilty of having carnal knowledge of an infant female under twelve years of age, and fix his confinement in the penitentiary from ten to twenty years, in their discretion. To have carnal knowledge with the infant's consent there must have been some penetration, however slight, if the parts of the infant were sufficiently developed to admit it; but if not so developed, then the pressing or rubbing his private part against her private parts for the purpose of producing an emission, was sufficient to constitute carnal know edge.” Held error. White v. Com., (Ky.) 28 S. W. Rep. 340, 1894.

Erroneous Instruction on Credibility of Witnesses. The court instructed the jury that they might “disregard the evidence of such witnesses as have been successfully impeached by direct contradiction, or by proof of having made different statements at other times, or by proof of bad moral character, or by proof of bad general reputation for truth, except in so far as such witnesses have been corroborated by other credible evidence or facts and circumstances proven on the trial.” Held error, as it left the jury to determine whether a witness had been impeached.

Erroneous Charge on the Subject of Fraud as a Substitute for Force.

Where the evidence tended to show that the defendant had carnal intercourse with the prosecutrix while in bed with her husband, and the testimony was conflicting as to whether she was asleep or not, it was held error for the court to charge the jury that if they believed from the evidence that the defendant “ by either force or fraud” had carnal knowledge of the prosecu

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