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person by fraud, the man is clearly guilty of an assault - perhaps of a rape — but certainly of an assault, which is included in a rape.” “The young woman,” said Coleridge, J., "consented only to medical treatment, from the confidence which she reposed in the prisoner, - which confidence he so much abused ; she made no resistance ; but as the prisoner obtained his purpose by fraud, he was guilty of an assault.” e In this last case, it should be observed, the only question was whether consent obtained under such circumstances as these was a defence, and it was agreed by all the judges that it was not. f

As has been observed, it may be generally said that where the defendant in such cases accomplishes his purpose by fraud or surprise, without intending to use force, it is not rape, though it is otherwise when the intent was to use force if the fraud failed. I

4. Acquiescence obtained by Artificial Stupefaction. $ 1146. In England, in a crown case reserved, it was proved that the prisoner made the prosecutrix drunk, and that when she was in a state of insensibility took advantage of it, and violated her. The jury convicted the prisoner, and found that the prisoner gave her the liquor for the purpose of exciting her, and not with the intention of rendering her insensible, and then having sexual intercourse with her. The judges held that the prisoner was properly convicted of rape. h e But see post, $ 1156 b.

state is caused by the man or not, f R. v. Case, supra, and see R. v. the accused knowing at that time she Locke, close of note z, ante, 1141. was in that state." And Tindal, C. J.,

g Pleasant v. State, 8 Eng. (3 Ark.) and Parke, B., remarked, that in Stat. 360. So also Walter v. People, 50 West. 2, c. 34, the offence of rape is Barbour, 144; Clark v. State, 30 described to be ravishing a woman Texas, 448; Com. v. Fields, 4 Leigh, “ when she did not consent, and not 648.

ravishing against her will.But all h Reg. v. Camplin, 1 Car. & K. 746; the ten judges agreed, that in this case, S. C., 1 Denis. C. C. 90. In a letter where the prosecutrix was made into Mr. Denison, by Mr. Baron Parke sensible by the act of the prisoner, (1 Denis. C. C. Add. p. 1), that learned and that by an unlawful act, and judge in commenting on Camplin's where also the prisoner must have case, says: “ Of the judges who were known that the act was against her in favor of the conviction several consent at the last moment she was thought that the crime of rape is com- capable of exercising her will, because mitted by violating a woman when she he had attempted to procure her conis in a state of insensibility, and has sent, and failed, the offence of rape no power over her will, whether that was committed. See, also, comments

A similar decision was given in Massachusetts in 1870 in a case in which the evidence went simply to the fact that the prosecutrix was at the time of the act unconscious through intoxication, though there was no allegation that she was made so by the defendant. ¿ But in New York where such intoxication was proved, but where there was no evidence that the original intent was to use force, it was held that rape was not made out under the special statute.j But if force be intended, in accordance with the principle already announced,k we may regard it as settled that to effectuate carnal intercourse with a woman unconscious through any cause, natural or artificial, is rape. But the stupefaction must be so complete as to exclude the possibility of assent.l The real point of departure in the Massachusetts case above cited is not on the question of consent but of force. That mere acquiescence by a person incapable of consent is no defence to an indictment for assault is now finally settled. 11 But when rape is to be proved, force is an essential ingredient. And unless the intention was to ravish the woman by force, an element necessary to constitute this high felony is wanting. Such intent must be either proved or presumed from the nature of the act. It is only by assuming such intent that we can justify a conviction had in Philadelphia, in 1854, where it appeared that the offence was committed by a dentist on his patient when she was under the influence of ether; and this, although she was the only witness to the fact. m The same remarks apply to a similar conviction in Ohio in 1860. n

on this case in R. v. Page, 2 Cox C. C. k Ante, $ 1141, 1143. 133.

See State v. Stoyell, 54 Me. 24. i Com. v. Burke, 105 Mass. 376. 11 R. v. Lock, cited note z, ante, ş į People v. Quin, 50 Barbour, 128. 1141. In this case although Judge Johnson, m Com. v. Beale, Phila. Q. S. 1854. who gave the opinion of the supreme The court said : “ The last and most court, threw out intimations as to the important reason relates to the weight soundness of the ruling in R. v. of evidence, and the alleged want of Camplin, the decision was put on the evidence of penetration. The examsingle ground that the legislature hav- ination of the whole case, which this ing made carnal knowledge of an in- reason obliged us to make, certainly toxicated woman an independent of- convinced us that it was not free from fence, it must be so treated by the difficulty. In considering it, we must courts.

regard first the means of proof ; 2d.

State v. Green, reported in full in 2 Wh. & St. Med. Jur. 3d ed. $ 267.

$ 1147. Sexual connection, therefore, with a person in an unconscious condition, is rape. But, to support a conviction, there Th evid nce given. The witness, the court to interfere with the decision whose evidence was relied on for the of the jury upon an issue submitted to proof of the perpetration of the offence them by the defendant; that issue was by the defendant, was Miss Mudge, the exclusively one of the fact, and by the prosecutrix. Her competency to tes- decision of it we are bound. The retify was not questioned, and her evi- liance to be placed on the statements dence was given to the jury. It ap- of the prosecutrix was thus submitted peared that she had been placed entirely to their consideration. They under the influence of ether at the were to decide upon the credibility of time when the alleged offence was the witness, and of her opportunity perpetrated, and whether what she and capability of knowing the facts to testified to was an actual occurrence, which she testified. As to her general or a delusion arising from the effect of credibility, no question was made by the ether, was a prominent question any one; her character for veracity made by the defence. A large portion stood entirely unimpeached. As to of the evidence was designed to show her opportunity and capability of to the jury the effect produced by knowing the facts to which she testiether upon the human system, and fied, much evidence was submitted to that its tendency was to excite mental the jury. The effect of ether upon the action and produce fancies, which took system was explained by many wittheir color from recent impressions. nesses. Some of these persons exhibUpon the evidence thus submitted, the ited a mental and physical condition jury were called to decide. This is- very analogous to that described by sue was strongly presented, and the Miss Mudge as existing in her case; proof of the existence of such a de- and upon the whole evidence the jury lusion was confidently assumed by the were left to determine whether she defence. What might have been our was in a state of consciousness which opinion upon the propriety of relying enabled her to know what was going solely upon the evidence produced by on around her, or whether, influenced the commonwealth, where the chief by a delusion, she had detailed the witness stated the fact that she was particulars of a dream.

The jury under the influence of ether at the found in favor of her consciousness, time to which her testimony referred, and believed that the facts detailed by and in the absence of accompanying her were realities and not delusions. corroboration, need not now be con- Is it for the court to decide that in sidered, inasmuch as the defendant this the jury bave erred? Why was assumed to show the actual condition the evidence of men of science, and of the witness at the time, and pre- of persons who had themselves been sented the question of her ability to under the influence of ether, submitted know the facts to which she testified

to the jury, unless to enable them to fairly and fully to the jury. Had this judge to what extent the administranot been so, we are free to say that tion of ether produced delusion, and our opinion might have been different; whether the witness was so influenced but after the most anxious considera- by it? This was the peculiar province tion, we have been unable to rest upon of the jury. In every case where the any principle which would authorize mental or moral condition either of a should be first, proof of the corpus delicti, which includes intent to use force. And secondly, the reality of the unconsciousness must be proved. Non omnes dormiunt, qui clau808 et conniventes habent oculos.

.

.

. 5. Presumption of Acquiescence from Prior Unchastity.

$ 1148. The fact of the woman being a common strumpet, or the mistress of the defendant, is no bar, though such fact undoubtedly would prejudice her testimony.p

To what extent evidence impeaching the prosecutrix's character may be received, will be presently considered. party or of a witness is put in issue, was, therefore, regarded as exclusively the decision of such condition is for a question for the jury, and they were the jury. Where insanity or intoxica- strongly charged by the court to contion is relied on as defence, it is for sider the evidence bearing upon this the jury to ascertain from the evidence part of the defence cautiously, and to the extent to which the party is in- hesitate to convict, unless fully confluenced. So the testimony of a wit- vinced that the witness could be propness may be impeached by proof of erly relied on. We see no reason to insanity or intoxication existing at the doubt the correctness of the decision time of the transaction in relation to of the jury upon the evidence subwhich he testifies ; but certainly the mitted to them upon this question. jury upon the whole evidence must de- Whether the evidence was all that cide the question of credibility. The was proper, or that could have been fact that a person has taken spirituous produced, it is not for us to determine. liquors does not render his testimony The defendant called such witnesses inadmissible, unless the effect is shown as he deemed sufficient for his case; to be such as to deprive him of the and that he had been unable to satisfy capacity of knowing that to which he the jury, is not sufficient reason for testifies. Nor, it is presumed, will the the interference of the court.” See use of ether disqualify, unless the this case fully discussed, 2 W. & S. quantity taken has produced certain Med. Jur. (1873) $ 245–267, &c. The effects, of which the jury are the rightness of the verdict in this case judges. If the mere fact of having was much doubted at the time, and taken ether rendered a witness un- shortly afterwards, after a careful worthy of belief, upon what principles reëxamination, and on the express could those witnesses, called by the ground of the doubts entertained, a defendant to prove the existence of pardon was granted by Governor delusion as one of the effects of that Pollock. drug be offered? They all testified 0 2 W. & S. Med. Jur. (1873) to their condition while under its in- 242. . fluence; and if they are worthy of p i Hale, 629; Arch. by Jerv. 453 ; belief, why may not the prosecutrix R. v. Barker, 3 C. & P. 589. See be equally credible? The existence Pleasant v. State, 8 Eng. (3 Ark.) of delusion in the mind of the witness 360 ; Wright v. State, 4 Humph. 194.

IV. PARTY AGGRIEVED AS A WITNESS.

1. Her Admissibility and, Weight. · § 1149. The party aggrieved is so much considered as a withess of necessity in this as in other personal injuries, q that in Lord Audley's case, who assisted another man in ravishing his own wife, she was admitted as a witness against him.r If the witness be of good character; if she presently discovered the offence, and made search for the offender ; if the party accused fled for it, these and the like are concurring circumstances, which give greater probability to her evidence. But, on the other side. if she be of evil fame, and stand unsupported by the testimony of others; if she concealed the injury for any considerable time after she had opportunity to complain ; if the place where the fact was alleged to have been committed were such that it was possible she might have been heard, and she made no outery, these and the like circumstances carry a strong, but not a conclusive presumption that her testimony is false or feigned. 8

While no unreasonable suspicion should be indulged against her on trial, courts and juries should be cautious in scrutinizing her testimony, and guarding themselves from the influence of sympathy on her behalf. t It is no excuse, as had been said, that the woman consented after the fact, nor that she was a common strumpet, for she is still under the protection of the law, and may

not be forced ; nor that she was first taken with her own consent, if she was afterwards forced against her will ; nor that she was a concubine to the ravisher; for a woman may forsake her unlawful course of life, and the law will not presume her incapable of amendment. All these latter circumstances, however, are material to be left to the jury in favor of the party accused, more especially in doubtful cases, and where the woman's testimony is not corroborated by other evidence. u And in Cali9 Ante, $ 769.

u 1 Hale, 628,631 ; 1 Hawk. c. 41, s. fr Lord Audley's case, Hutt. 116 ; 2. Thus where the prosecutrix did not 1 State Tr. 387; Stra. 633 ; 1. Hale, disclose the offence till interrogated, 629; 12 Mod. 340, 354.

and continued her intercourse with s 4 Black. Com. 213 ; 2 Wh. & St. defendant after the act, this was held Med. J. $ 279.

not enough for conviction. Whitney 1 People v. Hulse, 3 Hill's N. Y. R. v. State, 35 Ind. 503; 4 Black. Com.

213; Cro. Car. 485.

309.

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