is not obliged to show an affirmative act of consent, as is implied in the first instruction, asked by the prosecution and given. That tells the jury that if they believe the girl was asleep when the defendant came to her, that is a circumstance to be considered in making up their minds, whether there was any consent on her part. The nature of the case does not call for affirmative evidence of consent, on the one side, but of dissent and repulsion on the other. It would be difficult to conceive of a case of a female, not yet abandoned, affording less evidence of dissent, or more negative evidence of assent; and the negative evidence, in such a matter, is all important.

The fact of the girl being asleep, if believed to be a fact, is a circumstance, it is true, but one of very little or no moment, unless there were some manifestations of dissent when she awoke. It is just as consistent with willingness as with unwillingness, and takes its character from the subsequent events. Adultery, or seduction, would seem to be more nearly reached by the proof than forcible defilement. The defendant should have had a new trial, and the court should have given the instruction asked by him. It is within the province of the court to instruct the jury, whether the facts proved, if believed, constitute the offense charged. This is often done, in one form or another, as in murder, larceny, etc., by instructing whether certain facts make the offense, or come within the definition. Such are instructions upon what is a breaking, in burglary; what a deadly weapon; and what a taking and carrying away.

Judgment reversed.

RAPE-CONSENT-FRAUD NOT EQUIVALENT TO FORCE.
DON MORAN v. PEOPLE.

[25 Mich. 357.]

In the Supreme Court of Michigan, July Term, 1872.

Consent-Rape - Consent Induced by Fraud. - On a trial for rape an instruction that if the defendant procured the consent of the woman by means of false and fraudulent representations that as a part of his medical treatment of her it was necessary for her to have connection with him, and she believing and relying upon such representations gave her consent and had connection with him, he was guilty, is erroneous.

ERROR to the Recorder's Court of the City of Detroit.

E. H. Saunders, S. Larned and F. A. Baker, for the plaintiff in

error.

Dwight May, Attorney-General, for the People.

CHRISTANCY, Ch. J. Plaintiff in error was tried in the Recorder's Court of the City of Detroit, upon an information charging him with having committed a rape upon Frances Jackson, a female of the age of ten years and more, to wit: of the age of sixteen years. The information was in the usual form, that he did ravish and carnally know the said Frances by force, and against her will.

The bill of exceptions is as follows:

"And on said trial, the People, to maintain the issue on their part, introduced evidence that tended to prove, that the father of the complaining witness, shortly before she was sixteen years of age, brought her to the house of the defendant, in Detroit, to be treated for consumption, the defendant claiming to be skilled in the treatment of diseases of that kind; that her father kept her at defendant's house; that the defendant made an examination of her, and, after such examination, told her that the 'whites' had collected in her stomach; that she was ulcerated; that her uterus was inverted; that to save her life it would be necessary to enlarge her 'parts,' so that the 'whites' might pass off, to heal the ulcers, and turn the uterus; that he could do this with instruments, but the operation would probably kill her; that the only way would be for him to have carnal connection with her; that when she objected, he told her that it was what he did to all women who came to be treated by him; that he told her father that it would be necessary, and he understood all about it, and had authorized the defendant to have connection with his daughter; that she, relying upon these representations, and believing them to be true, permitted the defendant to have connection with her; that if it had not been for such representations she would not have yielded; and that said representations were false, and known by the defendant to be so.

"The defendant, to maintain the issue on his part, introduced evidence tending to rebut that given by the prosecution.

"The court charged the jury as follows:

"If you find that the defendant represented to the complaining witness that, as a part of his medical treatment it was necessary for her to have carnal connection with him; that such representations were false and fraudulent; that she believed it, and, relying upon it, consented to the solicitations of the defendant, and had connection with him; and that such representations were made for the purpose of inducing her to give such consent, and that without it she would not have yielded, the defendant is guilty of the crime charged against him.

"If the complaining witness did not believe the representations, was not deceived by them; or had sense and intelligence enough to know

better than to believe them; or by the reasonable exercise of such faculties as she has, might have known better, and that the act was wrong, the defendant is not guilty.

"To said charge, and each and every part thereof, the defendant then and there excepted."

It will be noticed that this charge leaves out, and wholly ignores all idea of force as a necessary element of the crime charged; and the jury, were in effect, told that the defendant might be found guilty of the rape, though he neither used, nor threatened to use, any force whatever, in case of her refusal, and though she might have assented without any constraint produced by the fear or apprehension of force, or any dangerous, or serious consequences to herself, if she refused or resisted.

This feature of the charge is assigned as error, and presents the only question raised in the case by the plaintiff in error.

The definition of rape, as generally given in the English books, is that "rape is the unlawful carnal knowledge, by a man of a woman, forcibly, or by force, and against her will." This definition depended, perhaps, partly upon the common law, but mainly upon two early and rather loosely worded English statutes, one of which, expressly made force an element in the crime, if the party were attainted at the king's suit (though not when the proceeding was by appeal), and the other,3 which did not require force as an element, except as it might be inferred from the word "ravished."4 And as remarked by Mr. Bishop,5 the more correct definition to be gathered from these statutes would have been, "Rape is the unlawful carnal knowledge by a man of a woman, by force, when she does not consent." The difference between the two definitions, however, would seem to be important only in cases where the female with whom the connection is had, may be said to have no will, as in the case of an idiot or insane person, or one in a state of unconsciousness, in which cases, if anywhere, the force necessary to accomplish the act itself without resistance could possibly be held to constitute the force contemplated by the definition of the offense. But this particular class of cases has no special bearing upon the case now before us (and we do not discuss it); nor are we embarrassed by any uncertainty in the definition of the offense.

Our statute has adopted substantially the definition first above given

13 Coke's Inst. (Thomas ed.) 549; 1 Hale P. C. 628; Hawk. P. C., (Ci. ed.) 522; 4 Bla. Com. 210; 1 Russ. on Cr. 1 Greenl. ed.) 675. 2 Stat. Westm. II., ch. 34.

8 Stat. Westm. I., ch., 13.

4 See 2 Bish. Cr. L. secs. 1067-1069, where the substance of these statutes is given. 63 Bish. Cr. L., sec. 1073.

See Rex v. Ryan, 2 Cox C. C., 115; Rex v. Fletcher, Bell C. C. 63; Reg. v. Camplin, 1 Den. C. C. 89.

from the English authorities. Section 57301 declares: "If any person shall ravish and carnally know any female of the age of ten years or more, by force and against her will, he shall be punished," etc.

In the interpretation of this statute it is clear that the terms "by force" must not be wholly rejected or ignored, but that some effect must be given to them; and the language of the provision certainly requires something more to be shown than if these words had been omitted; and it is equally clear that if that particular kind and amount of force only is required which is always essential to the act of sexual connection itself, when performed with the assent of the woman, then no effect whatever is given to the terms "by force," but the interpretation and the effect of the statute will be precisely the same as if these words were not contained in it. This interpretation, therefore, is not permissible. Some effect must be given to the words; and such has been the almost, if not entirely uniform course of decision, both in England and in this country, where the definition of the offense is substantially the same as that given by our statute, when the charge has been for the actual commission of the rape upon a female of the age of proper discretion, of sound mind, and in full possession of her faculties, however fraudulent the means, or false the pretenses, by which her consent was procured. I have not been able to find a single well authenticated case, where the question was directly raised, in which it has been directly decided the other way. The anonymous case cited in the note to 1 Wheeler's Criminal Cases,2 and referred to by Mr. Wharton3 and by Mr. Bishop,4 to the effect that force is not necessary in the commission of rape, but that stratagem may supply its place, is stated as mere rumor of a decision made at Albany by Chief Justice Thompson, and, as very properly remarked by the court in Walter v. People,5 "loose statements of this kind are entitled to no consideration whatever." In State v. Shepard, the woman was asleep, and did not discover the fact until defendant had violated her person; and her first impression was that it was her husband; as soon as she awoke and became sensible of the situation, he sprang from the bed. The charge was for an assault with intent to commit a rape. The prisoner's counsel contended that, if there was any carnal knowledge obtained, it was a rape, and the prisoner could not be convicted of the mere assault with intent, etc., as the less offense was merged in the greater. The only question discussed was, whether proof of a rape would sustain an indictment for an attempt to commit it; and, as very properly remarked by the counsel for plaintiff in error in the case before us, the counsel for the prisoner in that case over

1 Compiled Laws of 1857.

2

p. 381.

* Cr. Law, sec. 1144.

42 Cr. Law, sec. 1080.

650 Barb. 144.

67 Conn. 54.

looked a good defence in the attempt to maintain a frivolous one.

The case of Regina v. Stanton,1 has been sometimes cited as sustaining nearly the same doctrine as that cited from the note to Wheeler's Criminal Cases. But it was the case of an indictment for an assault with intent to commit a rape, where the prisoner, a physician, had obtained access to the person of the woman under pretence of administering an injection, and commenced to have carnal connection with her, when she, discovering it, got up and ran out of the room. This was clearly an assault, and the only question was, whether the intent existed as charged. As it did not appear that the prisoner had intended to use force, in case of resistance, it was of course but an assault only, and was so held by the court; but when the court say, that, if that intent had appeared, it would have constituted the completed offense of rape, they express an opinion upon a question not in the case. This is not the only case in which it seems to have been obscurely shadowed forth, that, when the defendant has succeeded in obtaining the connection without force, actual or threatened, and without resistance, by falsely personating the husband, the mere intent to use force, had it become necessary to accomplish his purpose, would satisfy the requirement of force involved in the definition of rape; 2 and a similar idea seems to have been obscurely intimated in some American cases. But, with all deference, I must be allowed to suggest, whether it has not resulted from confounding two distinct offenses, the completed offense of rape, and the attempt, or an assault with the intent, to commit it. And I am compelled to say, I am wholly unable to discover how the intent to resort to force in such cases, when it is in fact either resorted to, or in any manner threatened, can be at all material upon the question whether a rape has been committed, or how such intent, never brought to the notice of the woman by word or act, can satisfy the requirement of force in the legal definition of the offense; and such, I think, is the prevailing view of the English courts3 as well as of the American courts; though such intent would, of course, constitute a necessary and controlling element in a charge for an assault with intent to commit a rape, though in no way communicated to the intended victim.

But if we admit that the intent to resort to force, if required to accomplish the criminal purpose, in a case like the present, would, though never used or threatened, constitute the transaction a rape, this would

11 C. & K. 415.

2 See Rex v. Jackson, Russ. & Ry. C. C. 487.

See, among other cases, Reg. v. Saun

ders, 8 C. & P. 265; Reg. v. Williams, Id. 286; Reg. v. Clarke, Dears. 397; Reg, v. Fletcher, L. R., 1 Cr. Cas., R., 39; 14 L. T., (N. S.), 573; 12 Jur. (N. s.), 505.