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. The contrary, however, is the better approved opinion.g In New York, it is ruled g1 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; 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. k 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. e 1 Hale, 631; R. v. Eldershaw, 3 C. & P. 11; R. v. Groombridge, 7 C. & P. 582; Stephen v. State, 11 Geo. 227. f Williams v. State, 14 Ohio R. 222. See ante, § 58 et seq. g R. v. Phillips, 8 C. & P. 736; R. v. Jordan, 9 C. & P. 118; State v. Sam, Winston N. C. 300; Lewis C. L. 558. gl People v. Randolph, 2 Parker C. R. 213. h Com. v. Green, 2 Pick. 380. State v. Handy, 4 Harrington, 566. i Ante, § 61. See C. 213; State v. Sam, Winston N. C. 300. ji R. v. Phillips, 8 C. & P. 736; 1 Russell & M. 675. k Com. v. Green, 2 Pick. 380; R. v. Eldershaw, 3 C. & P. 396; State v. Pugh, 7 Jones N. C. 61. [This case, on the face of the report, is anomalous. The defendant was proved to have consummated the offence, but the indictment was only for the assault. He was thirteen years and six months old.] 1 Wh. & St. Med. Jur. ed. 1873, vol. j 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, making 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 1 Hale, 629; Lord Audley's case, 12 Mod. 340, 454; 1 St. Trials, 387; 1 Stra. 633. 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 some. o 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.r 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 s R. v. Lines, 1 C. & K. 393. See 2 W. & S. Med. Jur. 1873, § 249, 280. t See W. & S. Med. Jur. (1873) ii. § 282. u State v. Leblanc, 3 Brevard, 339; Penns. v. Sullivan, Add. 143; Stout r. Com. 11 S. & R. 177; Com. v. Thomas. 1 Virg. Cases, 307; Waller v. State, 40 Ala. 325. See W. & S. Med. Jur. vol. ii. § 282. subsequent examination; seminal spots; condition of dress; position and subsequent condition of defendant, &c. v But to justify v See State v. Hodges, Phill. (N. C.) L. 231, overruling State v. Gray, 8 Jones, 170; Brauer v. State, 25 Wisc. 413; R. v. Lines, 1 C. & K. 393; State v. Tarr, 28 Iowa, 397. Very questionable is the ruling on this point in the remarkable case of Com. v. Beale, Phila. Q. S. Nov. 1854. In this case, the court said on this point, on discharging a motion for a new trial: "The only remaining question is, whether the evidence given by the prosecutrix was sufficient, if believed, to sustain the verdict. It is true that the commonwealth failed to produce the corroboratory evidence, which an inspection of the person of the witness and of her garments might possibly have afforded; and it is equally true, that we should have been more fully satisfied had such evidence been produced. There is no rule of law, however, which imperatively demands that the witness shall be corroborated by such evidence. The want of such corroboration is a circumstance to be considered by the jury; and, after being carefully advised on this point by the court, if they regard the evidence produced as satisfactory, the court should not interfere, unless satisfied that their decision was clearly unjust. This we are not prepared to say. The witness, it is admitted, was an innocent, pure-minded girl; she told her sad story with apparent candor, detailed all that occurred from the time that the ether was administered: the feeling of her pulse, her arm, her bosom, her person, the fixing of her feet, the drawing down of her body to the edge of the chair, and finally the pain she suffered. It is not strange that the jury believed her ; for the question might well be asked, How could an innocent girl detail such occurrences, and with such precision, if it had not really occurred? There is nothing that appears so inconsistent in her story, or so apparently devoid of probability, that a jury should be instructed to disregard it, or that the court should interfere with their decision upon it. But it is said that, even if her statement be believed, it shows no legal evidence of penetration. "It is impossible to lay down any general rules regulating the nature and amount of proof required to establish the commission of such an offence. Each case must be viewed under its own circumstances, and legitimate inference drawn from all the facts proved. Here the witness states the preparation made by the defendant: her feet, which had been crossed, were spread apart, one on each end of the stool; her body was drawn down to the edge of the chair, the defendant was before her, she felt his breath upon her face, which shows that the position of his body must have been leaning over her; and at that time she felt the pain which enabled her to say that she had no doubt that the defendant entered her person. If this evidence as to sensation and position is believed, upon such an issue as here presented, of the condition and knowledge of the witness, may not the jury determine from it whether the penetration sworn to was such as the law requires to constitute a rape? "It is true, that she can only state, from the pain and from the defendant's breath, what part of his person he applied to hers; but if the jury understood her to mean that she believed her person was actually penetrated in the manner necessary to constitute a rape, and if, judging from her position upon the chair and the position which the 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. was sentenced to be castrated. He was pardoned, however, and the sentence consequently was never executed. § 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 her face, they were convinced that her belief was well founded, we cannot say that the jury were not authorized to draw the inference which they have drawn from all the evidence. Upon this subject great care was taken by the court to warn the jury against making a strained or hasty inference, and the requirements of the law were so fully explained that the jury could not have mistaken the fact which they are required to determine." See this case fully examined, 2 W. & S. Med. Jur. § 245, 282. In Connecticut a conviction has been sustained on the uncorroborated testimony of a young child. State v. Lattin, 29 Conn. 389. See R. v. Rearden, 4 F. & F. 76; People v. Tyler, 36 Cal. 522. w See post, § 1149. ≈ 1 Hale, 631; 1 Hawkins, ch. 41, sect. 8; State v. Knapp, 45 N. H. 148. y U. S. v. Dickinson, 1 Hempstead C. C. 1. This case was tried before the territorial court of Arkansas, in 1820. A very extraordinary feature about the case is, that this defendant z R. v. Fletcher, Bell C. C. 63; 8 Cox C. C. 131; R. v. Camplin, infra: and see an able exposition of the law to this effect by Judge Gray, in Com. v. Burke, 105 Mass. 376, and cases cited post, § 1146. See also R. v. Jones, 4 L. T. N. S. 154; and as to robbery, post, § 1701 a; 1 Hawk c. 41; and on the general question of estoppel by consent, ante, § 751 b. Said Kelly, C. B., in 1873, on a crown case reserved: "I think that when a child submits to an act of this kind in ignorance, the offence is similar to that perpetrated by a man who has connection with a woman while asleep. If that were not an assault, our law would be very defective. In such a case, consent is out of the question, for a woman whilst asleep is in such a state that she cannot consent, and the act of connection with her under the circumstances is quite sufficient to constitute an assault. There are many cases which show that having connection with a woman whilst asleep, |