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. g 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. f R. v. Case, supra, and see R. v. Locke, close of note z, ante, § 1141. g Pleasant v. State, 8 Eng. (3 Ark.) 360. So also Walter v. People, 50 Barbour, 144; Clark v. State, 30 Texas, 448; Com. v. Fields, 4 Leigh, 648. h Reg. v. Camplin, 1 Car. & K. 746; S. C., 1 Denis. C. C. 90. In a letter to Mr. Denison, by Mr. Baron Parke (1 Denis. C. C. Add. p. 1), that learned judge in commenting on Camplin's case, says: "Of the judges who were in favor of the conviction several thought that the crime of rape is committed by violating a woman when she is in a state of insensibility, and has no power over her will, whether that state is caused by the man or not, 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. i 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. 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. 1 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 n 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 The evidence given. The witness, whose evidence was relied on for the proof of the perpetration of the offence by the defendant, was Miss Mudge, the prosecutrix. Her competency to testify was not questioned, and her evidence was given to the jury. It appeared that she had been placed under the influence of ether at the time when the alleged offence was perpetrated, and whether what she testified to was an actual occurrence, or a delusion arising from the effect of the ether, was a prominent question made by the defence. A large portion of the evidence was designed to show to the jury the effect produced by ether upon the human system, and that its tendency was to excite mental action and produce fancies, which took their color from recent impressions. Upon the evidence thus submitted, the jury were called to decide. This is sue was strongly presented, and the proof of the existence of such a delusion was confidently assumed by the defence. What might have been our opinion upon the propriety of relying solely upon the evidence produced by the commonwealth, where the chief witness stated the fact that she was under the influence of ether at the time to which her testimony referred, and in the absence of accompanying corroboration, need not now be considered, inasmuch as the defendant assumed to show the actual condition of the witness at the time, and presented the question of her ability to know the facts to which she testified fairly and fully to the jury. Had this not been so, we are free to say that our opinion might have been different; but after the most anxious consideration, we have been unable to rest upon any principle which would authorize They the court to interfere with the decision of the jury upon an issue submitted to them by the defendant; that issue was exclusively one of the fact, and by the decision of it we are bound. The reliance to be placed on the statements of the prosecutrix was thus submitted entirely to their consideration. were to decide upon the credibility of the witness, and of her opportunity and capability of knowing the facts to which she testified. As to her general credibility, no question was made by any one; her character for veracity stood entirely unimpeached. As to her opportunity and capability of knowing the facts to which she testified, much evidence was submitted to the jury. The effect of ether upon the system was explained by many witnesses. Some of these persons exhibited a mental and physical condition very analogous to that described by Miss Mudge as existing in her case; and upon the whole evidence the jury were left to determine whether she was in a state of consciousness which enabled her to know what was going on around her, or whether, influenced by a delusion, she had detailed the particulars of a dream. The jury found in favor of her consciousness, and believed that the facts detailed by her were realities and not delusions. Is it for the court to decide that in this the jury have erred? Why was the evidence of men of science, and of persons who had themselves been under the influence of ether, submitted to the jury, unless to enable them to judge to what extent the administration of ether produced delusion, and whether the witness was so influenced by it? This was the peculiar province of the jury. In every case where the 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 clausos et conniventes habent oculos. 0 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, the decision of such condition is for the jury. Where insanity or intoxication is relied on as defence, it is for the jury to ascertain from the evidence the extent to which the party is influenced. So the testimony of a witness may be impeached by proof of insanity or intoxication existing at the time of the transaction in relation to which he testifies; but certainly the jury upon the whole evidence must decide the question of credibility. The fact that a person has taken spirituous liquors does not render his testimony inadmissible, unless the effect is shown to be such as to deprive him of the capacity of knowing that to which he testifies. Nor, it is presumed, will the use of ether disqualify, unless the quantity taken has produced certain effects, of which the jury are the judges. If the mere fact of having taken ether rendered a witness unworthy of belief, upon what principles could those witnesses, called by the defendant to prove the existence of delusion as one of the effects of that drug be offered? They all testified to their condition while under its influence; and if they are worthy of belief, why may not the prosecutrix be equally credible? The existence of delusion in the mind of the witness was, therefore, regarded as exclusively a question for the jury, and they were strongly charged by the court to consider the evidence bearing upon this part of the defence cautiously, and to hesitate to convict, unless fully convinced that the witness could be properly relied on. We see no reason to doubt the correctness of the decision of the jury upon the evidence submitted to them upon this question. Whether the evidence was all that was proper, or that could have been produced, it is not for us to determine. The defendant called such witnesses as he deemed sufficient for his case; and that he had been unable to satisfy the jury, is not sufficient reason for the interference of the court." See this case fully discussed, 2 W. & S. Med. Jur. (1873) § 245-267, &c. The rightness of the verdict in this case was much doubted at the time, and shortly afterwards, after a careful reexamination, and on the express ground of the doubts entertained, a pardon was granted by Governor Pollock. 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 outcry, these and the like circumstances carry a strong, but not a conclusive presumption that her testimony is false or feigned. s 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 Cali 9 Ante, § 769. r Lord Audley's case, Hutt. 116; 1 State Tr. 387; 1 Stra. 633; 1. Hale, 629; 12 Mod. 340, 354. u 1 Hale, 628, 631; 1 Hawk. c. 41, s. 2. Thus where the prosecutrix did not disclose the offence till interrogated, and continued her intercourse with s 4 Black. Com. 213; 2 Wh. & St. defendant after the act, this was held Med. J. § 279. t People v. Hulse, 3 Hill's N. Y. R. 309. not enough for conviction. Whitney v. State, 35 Ind. 503; 4 Black. Com. 213; Cro. Car. 485. |