but by no means the same in law. The verdict is not sustained by the evidence, and a new trial must be granted. In Oleson v. State,1 the court in reversing a conviction below says: "The offense is alleged to have been committed about ten o'clock at night in the shanty in which the prosecutrix resided, in the city of Lincoln. Several neighbors resided within hearing distance, but she made no outcry. Her clothes were not torn nor were there any marks of violence on her person to indicate a struggle, although there is some testimony showing there was a slight mark upon her neck; but she seems to have testified in the preliminary examination that there were no such marks. Taking the testimony of the prosecutrix as true, and it fails to show such resistance on her part as will warrant a conviction for rape." In People v. Brown, the prosecutrix, Mrs. Julia Dow, and her sister-in-law, Mrs. Lupton, were riding on the same horse, on a public highway, about eleven o'clock a. m.. Mrs. Lupton was in the saddle, and Mrs. Dow was riding behind. They were going from their home to Mr. Dermott's, and had passed Mr. Turner's house, and got within about three-quarters of a mile of Mr. Dermott's when they met defendant Brown. The testimony of the two women was, in substance, that Brown said to them, that is a nice way to ride. That Mrs. Dow asked him if he had seen her horse at his place lately, and he replied yes, that it was in the pasture, and that if they would go back (Brown lived at the Turner place), and get dinner, he would get the horse for her. She said, no, we are going to Mr. Dermott's and he will get the horse. That the horse was walking, and Brown followed them, insisting on their going back to dinner and he would get Mrs. Dow's horse. That Brown came up and took hold of Mrs. Dow, when she asked Mrs. Lupton to make the horse go faster. Mrs. L. made the horse trot, when Mrs. Dow told her to stop and go slower. That Brown continued walking by her side, when she jumped off the horse and took hold of Mrs. Lupton's hand and walked by the side of the horse. That Brown then put his arms around her waist and threw her down and raised her clothes. That she asked Mrs. Lupton to pull him off and strike him. That Mrs. L. tried to pull him off, and then struck him with a stick. That Brown was over Mrs. Dow with his privates exposed, and had her clothes up, and unbuttoned her drawers, and pulled them down about her knees, and her legs apart. That Mrs. L. left and said she would call Mr. Wall, and when she had got away some distance, Brown left Mrs. Dow voluntarily. While this was taking place there was no violent struggle, but both women stated that they told Brown to get away. The charge in the indictment was, that Brown, with force and arms in and upon one Julia Dow, a female of twenty-one years of age, and not the wife of said F. A. Brown, feloniously did make an assault with intent then and there to commit an act of sexual intercourse with the said Julia Dow, by force and violence, against her will, contrary to the force, form, and effect of the statute in such case made and provided. The defendant was convicted, and moved in arrest of judgment, because the indictment was insufficient. The court overruled the motion. The defendant appealed. By the Court. "The indictment we think good in substance, though not so well drawn as to become a valuable precedent in criminal pleading. But the evidence falls wholly short of establishing the crime charged upon the defend 1 11 Neb. 276 (1881). 2 47 Cal. 447 (1874). ant. There was no resistance upon the part of the woman, or if there was any, it was of such equivocal character as to fairly suggest actual consent, or at most not a very decided opposition on her part. Judgment reversed and cause remanded for a new trial." Court, in reversing the conthere is not a single particuTrue, the witness was not "Apply these principles," said the Supreme viction in Crockett v. State,1 "to this case, and lar in which the testimony comes up to them. proven to be of ill fame, nor did it appear that she had given wrong descriptions of the place. But it does appear that the act was done if not in a public place, near to a neighborhood road; just outside of it which was continually being traveled; that the wife and mother-in-law of the accused had just walked off; were still in sight, and could have seen them had they looked around; that she did not 'halloo loud;' that she got up; finished getting wood and went to washing near by defendant's house; did not tell anybody, but her sister-inlaw the next Sunday, four days afterwards, and that proven by nobody but herself; that the sister-in-law seems to have been so little impressed by it that she did not tell the father or any one else until after the pregnancy was discovered; that it was the first time she ever had connection with a man; that she was by this first act, committed by violence and over her resistance begotten with child, and never said one word about it, which was properly proven until after she was known to be pregnant. This dereliction from the rule quoted is too great on the part of the prosecution to allow the verdict to stand." In Jacques v. People,2 the prisoner and one Harris were convicted of rape on Jane Smith. In the Supreme Court the conviction was reversed on the ground that resistance had not been shown but on the contrary the proof showed consent. BREESE, J., in delivering the opinion of the court said: "We have examined the record, voluminous as it is, made so by the introduction of much matter which could have been properly omitted, and fail to find a particle of evidence going to establish the guilt of the plaintiff in error of the matter charged, or of any act bordering on an assault with intent to commit rape. There is proof tending to show that these parties were concerned in a plan to induce the girl to accompany them to Chicago, in which they succeeded, using no force whatever, she accompanying them in their carriage voluntarily. The girl was staying at a Mrs. Goodyear's, who kept a saloon at Leyden Centre, in the environs of Chicago, and was there induced by Harris to partake of some wine, for which he called, and he became importunate in his efforts to be familiar with her, and to induce her to go with him to Chicago. She, perhaps somewhat stupified by the wine she had taken, left Mrs. Goodyear's some time in the evening, and walked some distance (about half a mile) on the road to Chicago, when she was overtaken by Harris and Jacques in a buggy, and by some means not satisfactorily explained, became an occupant of it. When they reached the city Jacques got out of the buggy and Harris and the girl also. This was at Barter's saloon, corner of Union and Erie Streets, into which Jacques entered with John Lomax, and took something to drink. Harris and the girl went to the National Hotel, at the corner of Washington and Wells Streets, and about one mile from this saloon. At the hotel Harris asked for a room for himself and wife, and they were put in room No. 14, where they remained all night. Michael Smith, the proprietor of this hotel, testifies that he saw them when they went up stairs 1 49 Ga. 185 (1873). 2 66 Ill. 85 (1872). from the office; he lit them up; did not notice anything in the actions of the girl whatever more than would be in the action of any female; heard no outcry during the night nor in the morning; no complaint was made to him. When he asked for a room the girl was outside in the hall; his name was not registered as Harris. The girl was standing against the door when he opened it, and she moved out of the way for him to pass her. She walked up stairs without assistance, deliberately into the room; had to go up sixteen steps. "The girl, on her cross-examination, states that after she got out of the buggy she walked, but don't remember putting up at the National Hotel that night. She says she woke up about seven o'clock the next morning; does not know that she had any carnal connection with Harris that night; to her best of recollection, she had not, to her knowledge, that evening. Harris, in the morning, gave her money to buy a ticket to go to Harlem. She further says she never had connection with any man to her knowledge. She further says she lay at the back of the bed; that Harris did not even feel of her, nor even ask her, or make a vulgar remark. She has no knowledge that Harris did anything to her at the hotel. The landlord who lighted them to bed saw nothing unusual in her appearance or deportment; she did not appear to be under the influence of stimulants, and unassisted, ascended a flight of stairs of sixteen steps, and passed the night with Harris without making any complaint. If he had carnal knowledge of her at that time, it was not forcible, but with her consent, and she was of age to give consent. However outrageous his conduct may have been, it did not amount to rape, and there is nothing to show that plaintiff in error knew that Harris had taken her to the hotel. They separated, after reaching Chicago, at Barter's saloon, after which plaintiff in error was not in the company of Harris and the girl. This was a mile from the hotel. An examination of the evidence fails to show anything to sustain the finding of the jury. That plaintiff and Harris were concerned in a conspiracy to abduct the girl, the evidence tends strongly to show; indeed but little doubt can be sustained of their guilt in this respect; but the charge in the indictment is not sustained nor is the verdict. For that reason, the verdict should have been set aside. Refusing to set it aside was error, and for the error the judgment is reversed." § 116. Forcible Defilement of Women. And it is likewise a defence to a charge of forcibly taking away a woman to defile her.1 § 117. Indecent Assault.. -And consent is a defence to an indecent assault committed by a man upon a man.2 § 118. Rape - - Consent Obtained by Fraud. "No amount of persuasion or solicitation, however improper, no amount of deception or even fraud however villainous or outrageous, will make illicit intercourse constitute rape, where the woman, induced or persuaded, consents to the act." This has been held in a number of cases. - § 118a. Connection by Means of Fraudulent Marriage. "If a woman be beguiled into her consent by marrying a man who had another wife living or by 1 Pollard v. State, 2 Iowa, 567 (1856). 2 Reg. v. Wollaston, 26 L. T. (N. 8.) 403 3 Stowe, J. in Com. v. Childs, 2 Pitts. 391 (1863). causing the nuptials to be illegally celebrated, and persuading her that the directions of the law had been observed, in neither case will the pretended husband be guilty of a rape,”1 as for example obtaining the consent of a woman to the connection by means of a fictitious marriage.2 § 119. -Fraud as to Medical Treatment. Thus, where a medical man obtained a girl's consent to a connection with her by persuading her that it was a part of the usual medical treatment in cases like hers, it was not rape. In Walter v. People a physician had sexual connection with a single woman thirty years of age, on two occasions while attending her professionally. She testified that he told her she had a disease of the womb, and a physical examination was necessary, that he professed to be making the examination while doing the act; that she believed his statements; that it occurred in the parlor of her brother's house in the day time while the wife of her brother was in an adjoining room, but she made no outcry and said nothing about it until she found she was pregnant. It was held that the physician was not guilty of rape. The plaintiff in error was indicted under section 225 of the Revised Statutes, for a rape upon Lucy S. Jones, and was tried and convicted of that crime, in that court, in December, 1865, and sentenced to imprisonment in the State prison for ten years. By the Court, GILBERT, J. The plaintiff in error has been convicted of the crime of rape, and is now imprisoned in the State prison under a sentence upon that conviction. The case is before us on a bill of exceptions. The plaintiff in error is a physician having a wife and four children, the prosecutrix is a single woman thirty years of age. The commission of the offense rests upon her testimony, alone. Her evidence, briefly stated, is, that the plaintiff in error, while attending her in a professional capacity, told her that she had a disease of the womb, and that a physical examination was necessary; that she submitted with much reluctance; that he had carnal connection with her, on two occasions, while professing to be making such examination; that this occurred in the parlor of her brother's house, in the day time, while the wife of her brother was in an adjoining room; that she made no outcry; that she believed that while the plaintiff in error was doing these acts, he was making a medical examination in the usual way; and that she made no revelation of these occurrences until after she had been told she was pregnant. No one, we think, would seriously contend that such a statement, made by a female of mature age, and possessing any intellectual capacity ought to be allowed to become the basis of a judicial action. The effort of the prosecution, therefore, was to show that the mental condition of the prosecutrix was such as to render her testimony credible. This effort failed. The only testimony on this point came from Dr. Stickney, who had known her twenty years. He testified that "She is not an imbecile, but not a smart or strong-minded girl." Further comment on the facts is unnecessary. The court, among other points, charged the jury as follows: "As to the degree of force used in a case like this, where resistance is not made by reason of a representation leading the female to believe that sexual penetration of her 1 State v. Murphy, 6 Ala. 765; 41 Am. Dec. 79 (1844). 2 Bloodworth v. State, 6 Baxt. 614 (1872). 8 Don Moran v. People, 25 Mich. 357 (1872). 4 50 Barb. 144 (1867). 5 Art. 2, ch. 1, p. 4. body is necessary for the recovery from disease, the force used in ordinary sexual intercourse is sufficient to constitute a rape." An exception was taken to this part of the charge. The prisoner's counsel requested the court to charge several propositions presenting the point, that the force requisite to constitute the crime of rape had not been proved, and also this proposition namely: that "even if the defendant had accomplished his alleged purpose by fraud, without intending to use force, then such fraud does not constitute rape, unless the evidence shows that the defendant intended to use force, if the fraud failed; " but the court refused to modify the charge, and the prisoner's counsel excepted. We are of opinion that the proposition, quoted from the charge, is erroneous. No authority has been cited sustaining such a proposition. The remark of Mr. Wharton in his treatise,1 can not be regarded as having the sanction of his learning and ability. It rests upon no other foundation than a note of the reporter in 1 Wheeler's Criminal Cases, which states a mere rumor of a decision by Mr. J. Thompson. Loose statements of that kind are entitled to no consideration whatever. Principles contrary to those laid down by the court below have been frequently asserted." We are also of the opinion that the proposition contained in the request of the prisoner's counsel, which we have quoted, was in several aspects of the case correct, and that the jury should have been instructed accordingly. The judgment, therefore, must be reversed, and as the evidence makes out no offense against the prisoner, he is absolutely discharged." $120. Fraudulent Personation of Husband. Nor is it rape where the consent of the woman is obtained by fraudulently personating her husband. In R. v. Jackson,' which is the leading English case, and was decided in 1822, the prisoner was convicted before Mr. Justice BAYLEY at the Spring assizes at Lancaster in the year 1822, for a burglary with an attempt to commit rape upon a married woman. It appeared in evidence that the prisoner went into the room and got into the woman's bed as if he had been her busband; that he was in the act of copulation when she made the discovery, and immediately, and before completion, he desisted. The jury found that he entered the house with intent to pass for her husband, and to have connection with her if she did not discover the mistake, but not with the intention of forcing her if she made that discovery. The learned judge thought it right to reserve the question for the consideration of the judges, whether the connection with the woman, whilst she was under that mistake, would have amounted to rape, and he accordingly respited the sentence. The case was considered by the judges in Trinity term, 1822, when four judges thought that the having carnal knowledge with a woman whilst she was under the belief of its being her husband, would be a rape, but the other eight judges thought it would not; and DALLAS, C. J., pointed out forcibly the difference between compelling a woman against her will, when the abhorrence which would naturally arise in her mind was called into action, and beguiling her into consent and co-operation; but several of the eight judges 1 Crim. Law, sec. 1144. p. 381. 2 See authorities cited in Roscoe's Cr. Ev. (6th ed.) 278, 806. See, also, People v. Bransby, 32 N. Y. 528; 2 Bishop's Cr. L., sects. 1078, 1080. Rex v. Jackson, 1 R. & R. 487; Reg. v. Clark, 29 Eng. L. & Eq. 542; Com. v. Field 4 Leigh, 648; Roscoe's Cr. Ev. 806; 2 Rev. Stats. 636, sec. 22. 52 Rev. Stat. 731, sec. 24. • Lewis v. State, 30 Ala. 54 (1857); Wyatt v. State, 2 Swan. 394 (1852). 7 R. & R. 254 (1822). |