CONSENT-RAPE - FICTITIOUS MARRIAGE.

BLOODWORTH V. STATE.

[6 Baxt. 614.]

In the Supreme Court of Tennessee, 1872.

Sexual Connection with a woman of weak intellect, her consent being obtained by a fictitious marriage, is not rape.

The prisoner was convicted of rape and appealed.

A. E. Hicks, for appellant.

Attorney-General Haskell, for the State.

FREEMAN, J. This is an indictment for rape alleged to have been committed on Eliza Ann Morris, by one Percell, in which the present defendant is alleged to have been present aiding and abetting and assisting said Percell in the perpetration of the act, and so guilty of the same offense. Bloodworth was convicted and appeals in error to this court, where several errors are insisted on for reversal of the judgment of said court below.

(Omitting some technical points.)

The next question presented arises on the facts as to the consent of the party alleged to have been the subject of the offense, or rather her incapacity by means of imbecility or feebleness of mind to give such consent, and the law as charged on this question by his honor the circuit judge.

The proof shows that Percell procured a man named Cook to personate a minister of the Gospel for the purpose of performing a mock ceremony of marriage with Miss Morris. Percell and Cook together with defendant went to a place in the woods near the house of the father of Miss Morris, in the latter part of October about two hours before sundown. That Percell went to the house, took the daughter, as her mother says, by the arm, and led her off to the woods, the mother following. They went to the place where Cook and defendant were in the woods, and then Cook representing himself as a minister of the Gospel from Clarksville, performed a pretended marriage ceremony producing at the time a paper purporting to be a marriage license authorizing him to marry the parties, Percell and Eliza Ann Morris, the daughter then started to go to Percell's house, about a mile perhaps from Morris'. A brother of the girl seems to have gone to the same house that night, staid all night, and slept in the same room with the parties. Percell slept with the girl that night. No force is shown; on the contrary, it is clear that the girl made no objection,

and no doubt, willingly, so far as she was capable, yielding to all that was done. It is equally clear, however, that the whole affair was a premeditated and deliberately carried out piece of fraud on the part of Percell and Cook, for the purpose of having sexual intercourse with a feeble-minded, if not imbecile girl-conduct deserving the utmost reprobation and worthy of the infliction of the severest penalty.

It is not so satisfactorily shown that the present defendant had any guilty knowledge of the purposes of the other two parties and the evidence might well generate a doubt as to whether he was not deceived into believing it to be a piece of sport on the part of the other two or a bona fide marriage. However, the jury seem to have thought differently.

As to the capacity of the girl to consent to what was done, or to refuse or oppose it, owing to mental incapacity, the evidence is meager, and not entirely satisfactory. The only evidence bearing on the question directly is that of Dr. Menees, who says that he had been a practicing physician for seventeen years and had visited the family of Morris at intervals during that period and waited on Eliza Ann when she was sick. He states that "she was a woman of very weak mind, and almost an idiot." He gave it as his opinion that she had enough mind to consent to have intercourse with a man, but that he thought she did not have mind enough to know what that consent was, etc. This is, as we have said, very unsatisfactory evidence as to the capacity of the party, and from it we could hardly be justified in concluding that she was an idiot, wholly incapable of assenting to the act complained of; nor could a court or jury well be called on to say with precisely how much intelligent comprehension of the nature and consequence of an act a party under such circumstances must have acted in order to make out the element of this offense given in the statute, of its being forcible and "against her will."

Without further referring to the testimony however it suffices to say that it clearly appears that this is a case of intercourse had with a very weak-minded woman, where her yielding to the wish of the party was obtained by gross fraud. And further the jury have found as they were bound under the charges of his Honor, in order to conviction that the woman was of such weak mind as to be incapable of giving her consent; or to use his language, was an idiot or lunatic of such feeble intellect as not to be able to or capable of exercising a rational will or of giving or withholding her consent. And the question is as to whether intercourse had with a woman without force under such circumstances, is or may be a rape under our laws. In the language of Judge Caruthers, in the case of Wyatt v. State,1" We agree with the Attor

1 2 Swan. 396.

ney-General, that the moral turpitude of the crime is as great when perpetrated by fraud and deception, as by force," and that the act richly deserves to be severely punished; but the question is, not what it deserves, nor what our feelings and individual opinions would dictate, but "what sayeth the law." It was settled in that case that the language of our statute defining rape to be " the unlawful carnal knowledge of a woman forcibly and against her will" necessarily included force as an essential element of the crime, and that to attain the result by fraudulently obtaining consent to the act, would not make out the offense. This case was decided upon a very full reference to the authorities and we are aware there are several most respectable authorities holding the opposite view, we feel bound to follow our own decisions. The statute, in fact, hardly admits, with any degree of fairness, a different construction; for to say that a thing is done forcibly and against the will of a party, is not sustained by showing that no force was used, but that fraud and deceit had been used instead of force. In fact, the idea of attaining an end by the use of fraud necessarily excludes the idea of force, and is antagonistic to it. As to the want of competent capacity to give or withhold consent, while this may and does exclude the idea of consent, affirmatively, yet it does not necessarily or fairly include or involve the idea of the language of the statute that it was done against her will. The principle of the case of Wyatt v. State, however, we deem conclusive of this aspect of the question, for in case of fraud where a woman yields to sexual intercourse with a man supposing him to be her husband, and is thus outraged in fact by fraud, she gives no intelligent assent to what is done, and she as much withholds her assent to the act done, if the case was apprehended by her, as the imbecile, and even would revolt from it; yet, in such a case, under the rule laid down, there would be no rape. We therefore feel constrained to hold, that the element of force being entirely excluded by the proof in the case, and the fact of some degree of assent shown and certainly no dissent, the act could not have been both forcible and against her will, and these elements are by our statute made essential in this crime.

The Legislature, with their attention called to this case, can, and no doubt will easily enact a law that will meet the precise case. We have no power to do it and can only administer the law as we find it.

There are perhaps several other errors in admission of testimony and it may be in the charge of his honor, but we do not deem it necessary to notice them, as what we have said is conclusive of the case.

Reverse the case and remand for a new trial.

Judgment reversed.

In the Supreme Court of New York, September, 1861.

1. Consent-Rape-Intoxication.

To constitute rape the connection must be ab. solutely against the consent of the woman. Therefore, to have criminal connection with a woman, intoxicated to the point of insensibility, is not rape; but is a special crime under the New York statute.

2. Nor Under such Circumstances can a person be guilty of an assault with intent to commit rape.

ERROR to the Court of Sessions of Monroe County.

The indictment charged that the defendants on or about August 22, 1866, at the town of Brighton, committed a rape on one Mary A. Williams; also, that they assaulted with intent to ravish; and still another count, for a simple assault and battery. Upon the trial, the girl, Mary A. Williams was not called as a witness, and the defendants claimed that there was no evidence upon which they could properly be convicted of either charge in the indictment. The evidence showed that on the day charged in the indictment the defendants Quin, Howell, and Widowson and the girl Mary A. Williams, went into a liquor store, in Rochester, and asked for something to drink; she drank whisky and Stoughton; some took beer; they drank two or three times; she drank freely whenever the others asked her, and herself called for liquor, Howell paying for it. She took a cigar and smoked it while in the store. She told the boys "let's go where we said we were going." The party then left the store, and all proceeded to a farm belonging to one Culver, outside of the city limits; the defendants, when the party reached said farm, were dragging and carrying the girl along, who was by this time stupid from intoxication. The defendants laid the girl upon the ground, and there was evidence going to show that two of them, at least, then had connection with her, the others being present all the time. They had a bottle with them. The girl remained stupefied until the next day.

When the People rested, the defendant's counsel asked the court to discharge the defendants on the ground that there was no evidence of non-consent on the part of the female, and also on the ground that the defendants should have been indicted under another statute.

The court denied the motion, and the defendants' counsel excepted. The girl was proved to be a common prostitute.

At the close of the testimony, the court charged the jury, among other things, as follows:

"If the jury find from the evidence that the defendants and the girl were voluntarily drinking together in the saloon, and after that went out together, no previous assignation having been made, nor consent given to have sexual intercourse, and that after walking some distance the operation of the liquor drank by the woman was such as to produce insensibility, and that while in such insensible condition, the defendants violated her person, they would be guilty of rape."

To which part of the charge the defendants' counsel duly excepted. The court also charged the jury, that if the jury, on the contrary found that an assignation was actually made between the parties; or that the woman consented to have sexual intercourse with the defendants, and proceeded with them to the place where the connection took place for the express purpose of having such connection; then, although at the precise time the connection took place she became insensible from the effects of the liquor she before that voluntarily drank, in the absence of any evidence showing that her previous consent had been withdrawn, the defendants would not be guilty of rape.

The jury found all the defendants guilty of an "assault with intent to commit a rape." Judgment was arrested until the decision of the general term upon the case and exceptions.

O. C. Davison, District Attorney, for the People.

L. H. Hovey, for the defendants.

By the court, JOHNSON, J. The jury found the defendants all guilty of an assault with intent to commit a rape. The evidence showed quite clearly that the female, on the occasion of the assault, was intoxicated to such a degree as to be entirely insensible. She had been a short time previous drinking quite freely with the defendants, who procured the liquor, once at least at her request, and drank with her.

The judge, among other things, charged the jury that if they should find, from the evidence, that the girl and the defendants were drinking together voluntarily, and afterwards went out together, without any assignation having been made, or any consent on her part to sexual intercourse with them, and she became insensible from the operation of the liquor thus drank, and while in such condition defendants violated her person, they would be guilty of rape. To this part of the charge the defendants' counsel excepted. It is now claimed by the counsel, that having carnal connection with a woman intoxicated to the point of of insensibility, forcibly, is not a rape, but is merely a crime under the twenty-third section of the act respecting offenses against the person.1

1 2 Rev. Stats. 663, sec. 23.