felony in the reign of George III. This statute recognized the common-law distinction. It made procuring an abortion after quickening of the child a capital felony, whereas at common law it was a misdemeanor only, and procuring a miscarriage before quickening of the child a felony of a mitigated character. The distinction has also been recognized by some of the statutes in this country in making it a crime to procure an abortion before the child has quickened. Most statutes, however, make no distinction at all.542 Under a statute making it an offense to administer a drug or use an instrument "with intent to produce a miscarriage of any pregnant woman," it is not necessary that the woman shall be quick with child.543 And where the statute denounces acts done "with intent to procure the miscarriage of any woman," it is immaterial whether she is enciente.543a

Under a statute punishing any one who shall use an instrument "with intent to destroy the child of which a woman may be pregnant, and shall thereby destroy such child before its birth," the intent to destroy the child is an essential element of the offense, and an indictment under the statute is fatally defective if it fails to allege such intent.544 It has been held that such a statute does not include a woman who procures a miscarriage on herself.544

542 See State v. Fitzgerald, 49 Iowa, 260, 31 Am. Rep. 148; Eckhardt v. People, 83 N. Y. 462, 38 Am. Rep. 462; Com. v. Tibbetts, 157 Mass. 519, 32 N. E. 910; State v. Howard, 32 Vt. 380; State v. Alcorn, 7 Idaho, 599, 64 Pac. 1014, 97 Am. St. Rep. 252. Under the Michigan statute, the child must have quickened. People v. McDowell, 63 Mich. 229, 30 N. W. 68.

See, generally, as to the statutory offense in the various states, 1 Am. & Eng. Enc. Law (2d Ed.) 188 et seq.

543 State v. Fitzgerald, 49 Iowa, 260, 31 Am. Rep. 148.

But a statute defining such an act as felonious homicide is a nullity, since there can be no homicide without loss of life. State v. Young, 55 Kan, 349, 40 Pac. 659.

543a Eggart v. State, 40 Fla. 527, 25 So. 144.

544 Smith v. State, 33 Me. 48, 54 Am. Dec. 607; Lohman v. People, 1 N. Y. 379, 49 Am. Dec. 340.

544a State v. Prude, 76 Miss. 543, 24 So. 871.

292. Justification and Excuse.

It is no offense at common law to procure an abortion, if it is done in order to save the life of the woman, and is necessary, or reasonably believed to be necessary, in order to save her life. It is generally expressly so provided in the statutes punishing abortion. If the exception is not expressly stated, it must be implied, for the statute must be read in the light of the common law.545 Generally speaking, there must be a criminal intent.545a To cause a miscarriage by accident is no

offense. 546

VIII. RAPE.

293. Definition.-Rape is a felony at common law. It consists in having unlawful carnal knowledge of a woman by force and without her consent.546a

294. Force and Want of Consent.

Rape is defined by East as "the unlawful carnal knowledge, by a man, of a woman, forcibly and against her will," 99547 and by Hawkins as "unlawful and carnal knowledge of a woman by force and against her will."548 The expression "against her will," however, in these and other definitions, means simply

545 See State v. Fitzporter, 93 Mo. 390, 6 S. W. 223; Bassett v. State, 41 Ind. 303; State v. Stokes, 54 Vt. 179; Hatchard v. State, 79 Wis. 357, 48 N. W. 380.

Advice of a physician, if acted upon in good faith, is generally a defense. State v. Meek, 70 Mo. 355, 35 Am. Rep. 427. In Wisconsin, however, the advice of two physicians is required by the statute. See Hatchard v. State, 79 Wis. 357, 48 N. W. 380.

545a State v. Jones, 4 Pen. (Del.) 109, 53 Atl. 858.

546 Slattery v. People, 76 Ill. 217.

546a It was anciently punished by loss of life or members; viz.-eyes and testicles. Bract. f. 147, Mikell's Cas. 536; 2 Pol. & M. Hist. Eng. Law, 490.

547 1 East, P. C. 434.

548 1 Hawk. P. C. c. 16, § 2, Beale's Cas. 419. See, also, 2 Inst. 180; Co. Litt. 123b.

"without her consent," and the latter expression has been substituted in modern statutes.549 Any man who has unlawful carnal knowledge of a woman by force, and without her conscious consent or permission, is guilty of rape, both at common law and under the statutes.550 All the authorities agree that this offense involves want of consent on the part of the woman. If she consciously consents to the act of intercourse, however tardily or reluctantly, and however persistently she may resist for a time, the act is not rape,551 provided she is of such an age and condition as to be capable of giving a valid consent.552

549 In a Massachusetts case it was said: "All the statutes of England and of Massachusetts, and all the text-books of authority which have undertaken to define the crime of rape, have defined it as the having carnal knowledge of a woman by force and against her will. The crime consists in the enforcement of a woman without her consent. The simple question, expressed in the briefest form, is, Was the woman willing or unwilling? The earlier more weighty authorities show that the words 'against her will,' in the standard definitions, mean exactly the same thing as 'without her consent,' and that the distinction between these phrases, as applied to this crime, which has been suggested in some modern books, is unfounded." Per Gray, J., in Com. v. Burke, 105 Mass. 376, 7 Am. Rep. 531, Beale's Cas. 457.

See, also, Gore v. State, 119 Ga. 418, 46 S. E. 671, 100 Am. St. Rep. 182. 550 In addition to the authorities above cited, see Steph. Dig. Crim. Law, art. 254; Reg. v. Camplin, 1 Den. C. C. 89; State v. Pickett, 11 Nev. 255, 21 Am. Rep. 754; Croghan v. State, 22 Wis. 445; Don Moran v. People, 25 Mich. 356, 12 Am. Rep. 283, Mikell's Cas. 539.

551 Reg. v. Barrow, L. R. 1 C. C. 156, Beale's Cas. 455; Reg. v. Hallett, 9 Car. & P. 748; People v. Dohring, 59 N. Y. 374, 17 Am. Rep. 349; Com. v. Burke, 105 Mass. 376, 7 Am. Rep. 531, Beale's Cas. 457; Whittaker v. State, 50 Wis. 518, 7 N. W. 431, 36 Am. Rep. 856; State v. Murphy, 6 Ala. 765, 41 Am. Dec. 79; State v. Shields, 45 Conn. 263; Mathews v. State, 101 Ga. 547, 29 S. E. 424; People v. Crosswell, 13 Mich. 427, 87 Am. Dec. 774; Charles v. State, 11 Ark. 389; Pleasant v. State, 13 Ark. 360; Brown v. Com., 82 Va. 653; Bean v. People, 124 Ill. 576, 16 N. E. 656; Strang v. People, 24 Mich. 1; Woodin v. People, 1 Park. Cr. R. (N. Y.) 464; Mathews v. State, 19 Neb. 330, 27 N. W. 234.

The act, however, may be performed in so brutal a manner as to amount to an assault and battery, which her consent to the intercourse will not purge. Richie v. State, 58 Ind. 355.

552 Post, §§ 295, 298.

C. & M. Crimes-27.

In many of the cases it has been said that, to make the act rape, the woman must have resisted "to the uttermost."553 In a New York case it was said that "resistance must be up to the point of being overpowered by actual force, or of inability, from loss of strength, longer to resist, or, from the number of persons attacking, resistance must be dangerous or absolutely useless, or there must be duress or fear of death."554 Some of the cases, however, decline to recognize the rule requiring the utmost reluctance and resistance. 554a

295. Women Non Compos Mentis, Insensible, or Asleep.

There is an apparent exception to the rule that force and want of consent are essential to rape in the case of intercourse with women who are insane, idiotic, insensible, or asleep at the time of the act; but the exception is only apparent, for in such cases there can be no consent, and there is sufficient force in accomplishing the act.554b If a woman is asleep, or is so insane or imbecile that she does not know the nature of the act, intercourse with her is rape, though she does not resist.555 For the same reason, unlawful intercourse with a woman who is reduced to a state of insensibility by intoxicating liquors or drugs

553 People v. Abbot, 19 Wend. (N. Y.) 192; People v. Dohring, 59 N. Y. 374, 17 Am. Rep. 349; People v. Crosswell, 13 Mich. 427, 87 Am. Dec. 774; O'Boyle v. State, 100 Wis. 296, 75 N. W. 989.

554 People v. Dohring, 59 N. Y. 374, 17 Am. Rep. 349.

554a State v. Sudduth, 52 S. C. 488, 30 S. E. 408; State v. Shields, 45 Conn. 256, Mikell's Cas. 547; Com. v. McDonald, 110 Mass. 405.

554b Gore v. State, 119 Ga. 418, 46 S. E. 671, 100 Am. St. Rep. 182. 555 Reg. v. Fletcher, Bell, C. C. 63, 8 Cox, C. C. 131; Reg. v. Barratt, L. R. 2 C. C. 81; Reg. v. Mayers, 12 Cox, C. C. 311; Harvey v. State, 53 Ark. 425, 14 S. W. 645; State v. Atherton, 50 Iowa, 189, 32 Am. Rep. 134; Gore v. State, 119 Ga. 418, 46 S. E. 671, 100 Am. St. Rep. 182.

The woman must be so insane or imbecile as not to know the nature of the act. See Reg. v. Fletcher, L. R. 1 C. C. 39, 35 Law J. M. Cas. 172; People v. Crosswell, 13 Mich. 427, 87 Am. Dec. 774; Bloodworth v. State, 6 Baxt. (Tenn.) 614, 32 Am. Rep. 546.

is rape, if the liquors or drugs were administered by the ac cused, or by another with his cognizance.556

296. Consent Induced by Intimidation.

Another apparent exception to the rule requiring force and want of consent in rape is in cases where the woman's consent is induced, or resistance prevented, by fear of personal violence threatened by the man. All of the authorities agree that a man is guilty of rape if he so overpowers a woman by threats and an array of force that she does not dare to resist, and has intercourse with her under such circumstances, for there is no real consent in such a case. 557

297. Consent Induced by Fraud.

Some of the courts have recognized a further exception to the rule requiring force and want of consent in cases in which the woman's consent is obtained by fraud. On this question, however, there is a conflict in the decisions. It has been held that if a woman is fraudulently induced to submit to sexual intercourse, when she does not understand the nature of the act, as where a physician fraudulently induces a girl to submit to intercourse with him by pretending that it is necessary and proper surgical treatment, the act is rape.558 But by the weight of authority, if a woman consents to sexual intercourse with a

556 Reg. v. Camplin, 1 Den. C. C. 89, 1 Cox, C. C. 220, 1 Car. & K. 746; Com. v. Burke, 105 Mass. 376, 7 Am. Rep. 531, Beale's Cas. 457. See, also, Reg. v. Ryan, 2 Cox, C. C. 115; Anon., 8 Cox, C. C. 134; Reg. v. Fletcher, L. R. 1 C. C. 39, 10 Cox, C. C. 248.

557 Doyle v. State, 39 Fla. 155, 22 So. 272, 63 Am. St. Rep. 159; Rice v. State, 35 Fla. 236, 17 So. 286, 48 Am. St. Rep. 245; State v. Shields, 45 Conn. 263; Felton v. State, 139 Ind. 531, 39 N. E. 228; Reg. v. Hallett, 9 Car. & P. 748; Reg. v. Woodhurst, 12 Cox, C. C. 443. Compare Whittaker v. State, 50 Wis. 518, 7 N. W. 431, 36 Am. Rep. 856.

558 Reg. v. Flattery, 13 Cox, C. C. 388, 46 L. J. M. C. 130, Mikell's Cas. 546; Reg. v. Stanton, 1 Car. & K. 415; Reg. v. Camplin, 1 Den. C. C. 89. See, also, Pomeroy v. State, 94 Ind. 96, 48 Am. Rep. 146; Eberhart v. State, 134 Ind. 651, 34 N. E. 637.