not sustain the charge in the present case, which did not even require the existence of such intent.

The true rule as to force in cases of rape generally, was recognized by this court in People v. Valentine Cornwell (not Croswell v. People, as printed in the report),1 where it was said, that "the essence of the crime is not the fact of intercourse, but the injury and outrage to the feelings of the woman by means of the carnal knowledge effected by force." And there being no force used or threatened in that case, but strong grounds for believing that the woman was the soliciting party, the connection was properly held not to constitute rape, though the woman was not of sound mind, and had no intelligent understanding at the time the act was committed, but was in good physical health. In cases where the woman is entirely insensible from idiocy, or from the effect of drugs administered (though the point is not here involved), it may be entirely right to hold a very slight degree of force sufficient; and that amount of force which, in such cases, would always be necessary, beyond what would be required with a consenting party, might, perhaps, properly be held, as it sometimes has been held, sufficient to make the transaction a rape, as suggested by my brother Cooley, in People v. Cornwell.2

And where drugs are administered or procured to be administered, by the criminal, for the purpose of taking away or lessening the power of resistance, and having that effect, there may be no ground for distinction between the force thus created by him through the agency of the drugs, and that directly exerted by his hand and for the same purpose.

The only question really involved in People v. Cornwell, above cited, was whether, under the circumstances of that case, the defendant could be held guilty without proof of force in any form, actual or threatened, and it was, I think, properly held by us that he could not. But after disposing of this, the only question in the case, an intimation was thrown out for which I admit, and claim, a full share of the responsibility that when a woman's consent is obtained by fraud, she at the time supposing the man to be her husband, the connection thus obtained may constitute rape. No such question was involved or argued; and we suppose it to be well understood by judges and the profession, that intimations and suggestions of this kind in no way necessary to the decision of the case, are not always, or generally, as carefully considered and examined as the questions upon which the case itself turns; and hence the familiar rule, that judicial opinions are to be considered as authority, and construed only secundum subjectam materiam.

1 13 Mich. 433.

2 Ubi supra.

If the statute or the definition of rape did not contain the words "by force," or "forcibly," doubtless a consent procured by such fraud as that referred to, might be treated as no consent; but the idea of force can not thus be left out and ignored, nor can such fraud be allowed to supply its place, though it would doubtless supply and satisfy all the other terms of the definition; and, so far as the intimation in question is to be understood as going further and dispensing with all idea of force, it must be understood as an intimation of the court of what, in their opinion, the law ought to be, rather than what it is. And upon abstract principles of right and wrong, a sexual connection obtained by falsely and fraudulently personating the husband of a woman, or by a physician fraudulently inducing a female patient to believe such connection essential to a course of medical treatment, must be considered nearly, if not quite, as criminal and prejudicial to society as when obtained by force or any apprehension of violence; and it might, and in my opinion would, be judicious for the Legislature to make some provision for punishment in cases of this kind. But it is not for the judiciary to legislate by straining the existing criminal law to bring such cases within it.

For this reason, I think the judgment of the Recorder's Court should be reversed, and a new trial awarded.

And with reference to a new trial, it is proper for the guidance of the Recorder's Court, to consider the nature of the evidence set forth in the record, and which will probably appear upon the new trial, and to determine what charge the state of facts would warrant; or, whether there was anything in the evidence which would authorize the jury to find that the carnal connection was obtained "by force, and against the will" of the party injured.

We think it is well and properly settled that the terms, "by force" do not necessarily imply the positive exertion of actual physical force in the act of compelling submission of the female to the sexual connection; but that force or violence threatened as the result of non-compliance, and for the purpose of presenting resistance or extorting consent, if it be such as to create a real apprehension of dangerous consequences, or great bodily harm, or such as in any manner to overpower the mind of the victim so that she dare not resist, is, and upon all sound principles must be, regarded for this purpose, as in all respects equivalent to force actually exerted for the same purpose.1 Nor, as appears by the case last cited, need the threats be of force to be used in accomplishing the act; as in that case the principal threat was, that if she refused he would take her away where she could never

1 See Reg. v. Hallet, 9 C. & P., 748; Reg. v. Day, Id. 722; Wright v. State, 4 Humph. 194;

Pleasant v. State, 8 Eng. 360. And see Strong v. People, 24 Mich. 1.

get back. In fact, we think the terms of the statute in reference to force, are satisfied by any sexual intercourse to which the woman may have been induced to yield, only through the constraint produced by the fear of great bodily harm, or danger to life or limb, which the prisoner has, for the purpose of overcoming her will, caused her to apprehend, as the consequences of her refusal, and without which she would not have yielded.

It remains only to apply these principles to the present case.

Considering the way, and the purpose for which, the girl had been placed by her father under the care and treatment of the defendant, as her physician, the evidence had a tendency to show, and the jury might properly have found, that the girl was induced by the defendant to submit to the sexual intercourse with him, from the fear and under the apprehension, fraudulently inspired by the defendant for the purpose of overcoming her opposition, that, if she did not yield to such intercourse, he intended to, and would use instruments "for the purpose of enlarging the parts" and that such operation with instruments would be likely to kill her. And should they so find,-with or without the other facts submitted to them by the charge given - and that she would not otherwise have yielded, it would be their duty to find the defendant guilty of the crime charged.

The judgment must be reversed, and a new trial awarded.

CAMPBELL, J., concurred.

COOLEY, J. As my brethren are agreed in this case, I concur in the result, while not fully assenting to all that is expressed in the opinion. GRAVES, J., did not sit in the case.

RAPE-CONSENT-FRAUDULENT PERSONATION OF HUSBAND.

LEWIS V. STATE.

[30 Ala. 54.]

In the Supreme Court of Alabama, January Term, 1857.

Consent-Rape -Personation of Husband. - Sexual connection with a woman, with her consent, does not constitute rape, even though her consent is procured by a fraudulent personation of her husband.

From the Circuit Court of Dallas. Tried before the Hon. ROBERT DOUGHERTY.

The indictment in this case charged that the prisoner, who was a slave, "did forcibly ravish, or attempt forcibly to ravish, Letitia

Boltze, a white female." The prosecutrix testified in substance, that after she had gone to bed, on the night of the alleged assault, she was awakened by some one rubbing his face against hers; that the person then had one leg over her, with his right arm across her breast, and her clothes raised above her knees; that at first she supposed it was her husband, who usually came to bed after she had fallen asleep; that she spoke to him, and, receiving no answer, put her hand on his head, when she discovered that it was a negro; that she then ordered him to "clear out," and the negro got up; that on her calling out to her uncle, who was sleeping in an adjoining room, the negro said "hush" and ran out of the room; that she recognized the prisoner from his voice. The evidence also showed that the prisoner was well acquainted with the premises, the situation of the several rooms in the house, and the fact that persons were sleeping in an adjoining room. It further appeared that the prosecutrix had made contradictory statements about the matter, at one time admitting that the prisoner had had actual connection with her, and at another time saying that she did not know whether he had or not.

The prisoner requested the following charges:

"1. That in order to find the prisoner guilty of an assault with intent to commit a rape, the jury must be satisfied that, when he laid hold of Mrs. Boltze, he not only desired to gratify his passions on her, but intended to do so at all events, notwithstanding any resistance on her part.

"2. That if the jury believe it was the prisoner's intention, when he entered Mrs. Boltze's room, to accomplish his purpose by fraud or surprise, intending to represent her husband, without using force, it is not an assault with intent to commit a rape, because one of the essential ingredients of that offense is wanting.

"3. That if the jury believe from the evidence that the prisoner at first used force, but desisted on resistance being made, and not because of an interruption, it could not be said that it was his intention to commit a rape, and therefore they can not find him guilty.

"4. That if the jury believe from the evidence that the prisoner had actual connection with Mrs. Boltze, they can not find him guilty of an attempt to commit a rape."

The refusal of these several charges, which was duly excepted to, presents the matter now assigned as error.

George P. Blevins and John T. Morgan, for the prisoner.

M. A. Baldwin, Attorney-General, with whom was George W. Gayle,

contra.

STONE. J. It is settled by a chain of adjudication, too long and unbroken to be now shaken, that force is a necessary ingredient in the

crime of rape.1 The only relaxation of this rule is, that the force may be constructive. Under this relaxation it has been held that where the female was an idiot, or had been rendered insensible by the use of drugs or intoxicating drinks, and, in one case, where she was under the age of ten years, she was incapable of consenting, and the law implied force.2 But when the cohabitation is, in fact, consentive, although that consent was procured by fraudulent personation of the female's husband, there is neither actual nor constructive force, and such act does not amount to the crime of rape.3

On principle, a defendant can not be convicted of an attempt to commit the crime of rape, unless he actually attempted to cohabit with a female by force, and against her consent. There was, in this case, at least some evidence tending to show that the act of the prisoner was an attempt to accomplish his object by fraudulent personation of the husband; and it was the right of the prisoner to have it passed on by the jury. The charge numbered two in the series ought to be given.4

The other charges were rightfully refused, because the first and third assume a higher grade of force than the law requires. The fourth loses sight of the plain fact, that in every actual rape, there is necessarily involved an attempt to commit the crime. Each, when committed by a slave on a white female, is punished with the same severity, and the doctrine of merger does not apply.5

The arraignment in this case was sufficiently certain; it substantially identifies this case. An imperfect marginal note speaks of a nolle prosequi of the first count.

The result of what we have said is, that the judgment of the Circuit Court is reversed and the cause remanded.

We depart from our usual course for the purpose of inviting the attention of the Legislature to this subject. Under our penal laws, one who obtains the goods of another under false and fraudulent pretenses, is held guilty in the same degree as if he had feloniously stolen them. He who contaminates female purity under like fraudulent pretenses goes unwhipped of justice. Let the prisoner remain in custody until discharged by due course of law.

1 Bish. on Cr. L., sec. 411.

2 Rex v. Ryan, 2 Cox C. C. 115; Commonwealth v. Fields, 4 Leigh, 648; State v. Shepard, 7 Conn. 54; Reg. v. Camplin, 1 C. & K. 746; Bish. Cr. L., sec. 343.

1 DEFENCES.

21

3 Rex v. Jackson, 1 Russ. & R. C. C. 486; Reg. v. Clarke, 6 Cox C. C. 412; Lead. Crim. Cas. 232, 233; 29 Eng. Law & Eq. 542. 4 Bob v. State, 29 Ala. 20. 5 See Robb's Case, supra.