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to be such ; every person so offending shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned in the penitentiary, and kept at hard labor, not more than ten, nor less than three years. (Ibid. sect. 6.)

I. DEFENDANT'S COMPETENCY TO COMMIT OFFENCE.

1. Infancy. $ 1134. At common law, as has been seen, a child under fourteen years is presumed incapable of committing a rape, e though in Ohio this presumption may be rebutted by the prosecution.f The contrary, however, is the better approved opinion.g In New York, it is ruled gl that it is necessary that the evidence to overcome the presumption should be very strong. In Massachusetts, it has been held, Parker, C. J., dissenting, that a boy under twelve could be rightfully convicted of an assault with intent to commit a rape.h The same view is taken in England ; i though the position has been denied in New York and North Carolina.j 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 be convicted as principal in the second degree, or of an assault with intent to commit the offence. Kc

2. Impotency. $ 1135. Impotency is undoubtedly a sufficient defence to an indictment for the consummated offence, though not for an assault with intent.

The subject of impotency is fully considered in another work.l e 1 Hale, 631 ; R. v. Eldershaw, 3 C. 213 ; State v. Sam, Winston N. C. C. & P.11; R. v. Groombridge, 7 C. & 300. P. 582; Stephen v. State, 11 Geo. 227. ji R. v. Phillips, 8 C. & P. 736; 1

f Williams v. State, 14 Ohio R. Russell & M. 675. 222. See ante, $ 58 et seq.

k Com. v. Green, 2 Pick. 380; R. g R. v. Phillips, 8 C. & P. 736 ; R. v. Eldershaw, 3 C. & P. 396 ; State r. v. Jordan, 9 C. & P. 118; State v. Sam, Pugh, 7 Jones N. C. 61. [This case, Winston N. C. 300; Lewis C. L. 558. on the face of the report, is anomalous.

gl People v. Randolph, 2 Parker The defendant was proved to have C. R. 213.

consummated the offence, but the inh Com. v. Green, 2 Pick. 380. See dictment was only for the assault. He State v. Handy, 4 Harrington, 566. was thirteen years and six months old.] i Ante, $ 61.

1 Wh. & St. Med. Jur. ed. 1873, vol. į People v. Randolph, 2 Parker C. ii. & 181–201.

3. Relationship. $ 1136. Though a husband cannot be convicted of the offence, he may be tried as the accessary of another therein, and the wife is a competent witness against both to prove the violence. m

II. IN WHAT CARNAL KNOWLEDGE CONSISTS. $ 1137. “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. Considering the nature of the crime, that it is a brutal and violent attack upon the honor and chastity of the 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, inaking the least penetration enough ; and in this country the proof of emission seems never to have been required. In several instances, in fact, it has been held, 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. In New York, by statute, penetration alone is made sufficient to support conviction, without emission.

When, in an indictment for fornication and bastardy, the witness testified, “He forced me; he worked himself under me, and in that way forced me; I did not give my consent; ”

m i Hale, 629; Lord Audley's case, 12 Mod. 340, 454; 1 St. Trials, 387; 1 Stra. 633.

80me. O

upon a demurrer to this evidence, it was held that it was not such as would merge the offence charged in the crime of rape, but that the defendant might be legally convicted of fornication. n

§ 1138. But while the slightest penetration is sufficient, the English practice is decisive that there must be specific proof of

It must be shown, to adopt the phraseology of Tindal, C. J., and afterwards of Williams, J., that the private parts of the male entered at least to some extent in those of the female. p At one time it was even thought that there must be proof that the hymen was ruptured, q though this is no longer considered necessary.ro 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;"s 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 the outset, so that she can take the necessary steps to secure such an examination in due time. If the principle 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. t

$ 1139. In this country it is in like manner unnecessary to prove either emission or rupture of the hymen, though proof of some degree of penetration is essential. u It is clear that, independently of the testimony of the prosecutrix, penetration may be inferred from circumstances, e.g. condition of body, as proved by subsequent examination ; seminal spots ; condition of dress ; position and subsequent condition of defendant, &c. v But to justify

n Com. v. Parr, 5 Watts & Serg. s R. v. Lines, 1 C. & K. 393. See 345.

2 W. & S. Med. Jur. 1873, $ 249, 280. o R. v. Russen, 1 East P. C. 438 ; i See W. & S. Med. Jur. (1873) R. v. Allen, 9 C. & P. 31; R. v. Jor- ii. § 282. dan, 9 C. & P. 118.

u State v. Leblanc, 3 Brevard, 339;

Penns. v. Sullivan, Add. 143; Stout r. 9 R. v. Gammon, 5 C. & P. 321. Com. 11 S. & R. 177; Com. v. Thomas. See 2 W. & S. Med. Jur. $ 249–280. 1 Virg. Cases, 307; Waller r. State.

r R. v. Hughes, 9 C. & P. 752. See 40 Ala. 325. See W. & S. Med. Jur. R. v. McRue, 8 C. & P. 641.

vol. ii. & 282.

p Ibid.

v See State v. Hodges, Phill. (N. if it had not really occurred ? There C.) L. 231, overruling State v. Gray, is nothing that appears so inconsistent 8 Jones, 170; Brauer v. State, 25 in her story, or so apparently devoid Wisc. 413 ; R. v. Lines, 1 C. & K. of probability, that a jury should be 393; State r. Tarr, 28 Iowa, 397. instructed to disregard it, or that the Very questionable is the ruling on this court should interfere with their depoint in the remarkable case of Com. cision upon it. But it is said that, even 1. Beale, Phila. Q. S. Nov. 1854. In if her statement be believed, it shows this case, the court said on this point, no legal evidence of penetration. on discharging a motion for a new “It is impossible to lay down any trial: “ The only remaining question general rules regulating the nature and is, whether the evidence given by the amount of proof required to establish prosecutrix was sufficient, if believed, the commission of such an offence. to sustain the verdict. It is true that Each case must be viewed under its the commonwealth failed to produce own circumstances, and legitimate inthe corroboratory evidence, which an ference drawn from all the facts inspection of the person of the wit- proved. Here the witness states the ness and of her garments might possi- preparation made by the defendant : bly have afforded; and it is equally her feet, which had been crossed, were true, that we should have been more spread apart, one on each end of the fully satisfied had such evidence been stool; her body was drawn down to produced. There is no rule of law, the edge of the chair, the defendant however, which imperatively demands was before her, she felt his breath upon that the witness shall be corroborated her face, which shows that the position by such evidence. The want of such of his body must have been leaning corroboration is a circumstance to be over her; and at that time she felt the considered by the jury; and, after be- pain which enabled her to say that she ing carefully advised on this point by had no doubt that the defendant enthe court, if they regard the evidence tered her person. If this evidence as to produced as satisfactory, the court sensation and position is believed, upon should not interfere, unless satisfied such an issue as here presented, of the that their decision was clearly unjust. condition and knowledge of the witThis we are not prepared to say. The ness, may not the jury determine from witness, it is admitted, was an innocent, it whether the penetration sworn to pure-minded girl; she told her sad story was such as the law requires to constiwith apparent candor, detailed all that tute a rape ? occurred from the time that the ether “ It is true, that she can only state, was administered: the feeling of her from the pain and from the defendant's pulse, her arm, her bosom, her person, breath, what part of his person he apthe fixing of her feet, the drawing down plied to hers; but if the jury underof her body to the edge of the chair, stood her to mean that she believed her and finally the pain she suffered. It is person was actually penetrated in the not strange that the jury believed her ; manner necessary to constitute a rape, for the question might well be asked, - and if, judging from her position upon How could an innocent girl detail such the chair and the position which the occurrences, and with such precision, defendant, being before her, must have a conviction, it should in some way be satisfactorily proved (the burden being on the prosecution), that a sexual connection was actually forced. w

§ 1140. It was formerly thought that if the female conceived, this was evidence of consent which negatived rape. This notion, however, has long since been exploded. « On the other hand, in this country, it has been expressly held that an introduction of an averment that the prosecutrix was gotten with child, does not vitiate the indictment. y

III. IN WHAT WANT OF WILL CONSISTS. $ 1141. The term “ against her will," was used in the old statutes convertibly with “ without her consent ;” and it may now be received as settled law that rape is proved when carnal intercourse is effected with a woman without her consent, although no positive resistance of the will can be shown. z

Such occupied so as to bring his breath upon was sentenced to be castrated. He was her face, they were convinced that her pardoned, however, and the sentence belief was well founded, we cannot say consequently was never executed. that the jury were not authorized to z R. v. Fletcher, Bell C. C. 63; 8 draw the inference which they have Cox C. C. 131 ; R. v. Camplin, infra : drawn from all the evidence. Upon and see an able exposition of the law this subject great care was taken by to this effect by Judge Gray, in Com. the court to warn the jury against v. Burke, 105 Mass. 376, and cases making a strained or hasty inference, cited post, $ 1146. See also R. v. and the requirements of the law were Jones, 4 L. T. N. S. 154; and as to robso fully explained that the jury could bery, post, $ 1701 a; 1 Hawk c. 41; not have mistaken the fact which they and on the general question of esare required to determine." See this toppel by consent, ante, $ 751 b. Said case fully examined, 2 W. & S. Med. Kelly, C. B., in 1873, on a crown case Jur. $ 245, 282.

reserved : In Connecticut a conviction has been “I think that when a child submits sustained on the uncorroborated tes- to an act of this kind in ignorance, the timony of a young child. State v. Lat- offence is similar to that perpetrated tin, 29 Conn. 389. See R. v. Rearden, by a man who has connection with a 4 F. & F. 76 ; People v. Tyler, 36 Cal. woman while asleep. If that were not 522.

an assault, our law would be very dew See post, $ 1149.

fective. In such a case, consent is out 2 1 Hale, 631; 1 Hawkins, ch. 41, of the question, for a woman whilst sect. 8; State v. Knapp, 45 N. H. 148. asleep is in such a state that she cannot

y U. S. v. Dickinson, 1 Hempstead consent, and the act of connection wih C. C. 1. This case was tried before her under the circumstances is quite sur the territorial court of Arkansas, in ficient to constitute an assault. There 1820. A very extraordinary feature are many cases which show that having about the case is, that this defendant connection with a woman whilst aslee",

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