may be the court may have felt there was danger in implying force from fraud, and an absence of consent, when in fact consent was given, though obtained by deception; and that cases might arise, however extreme, when a detected adultress, might, to save herself, accuse her paramour of a capital felony.

Whatever the reasons, however, we consider we ought to follow the judgment, and therefore that the conviction should be quashed and the prisoner discharged.

§ 121. Assault with Intent to Commit Rape-Obtaining Possession of Person by Surprise. In Reg. v. Stanton, it was held that obtaining possession a woman's person by surprise and not by force would not support a charge of assault with intent to commit rape. The evidence of the prosecutrix was as follows: "I am the wife of William Brown. The defendant was our medical attendant for fifteen months. He attended me for bleeding piles. He wished me to go with him to Birmingham to consult another medical man, Mr. Ingleby. After that defendant said he must give me an injection. On the 24th of February, the defendant came to our house at ten o'clock at night. I went up stairs to my own bed-room; and the defendant went up with me; there was a light in the room. He said he was ordered to give this injection, and he said I must place my head on the bed, and my feet on the floor, and I did so, and my clothes were up over my back. He was in the room behind me, and he then began to use the injection, and I felt the water running cold on my legs. This lasted five minutes, I was going to raise myself up, and he said, 'put your head on the bed, and do not stir for a moment.' I have had injections before, and they do keep persons still for a little while after they are applied. As I lay I perceived something very warm against my person; I resisted and rose up from the bed and said, doctor what do you mean? His small clothes were quite open, and I saw his naked person. I then ran down stairs and fell on a chair, and he rushed out of the house. I felt the parts of the defendant enter mine just a little."

COLERIDGE, J. If there was force the full crime was complete.

The prosecutrix further stated that she complained to her husband the same evening; but it appeared that neither she nor her husband went before any magistrate till the 5th of March.

Whitmore addressed the jury for the defendant and contended that the whole charge was entirely unfounded.

COLERIDGE, J. (in summing up). An assault with intent to commit a rape is very different from an assault with intent to have improper connection. The former is with intent to have connection by force; but here, according to the statement of the prosecutrix, the defendant desists the moment she resists, and at the most it could only be an attempt by surprise to get possession of the person of the prosecutrix, and that is not an assault with intent to commit a rape, but is an assault. If in this case the defendant had intended to effect his purpose by force, the complete offense of rape would have been proved, as the prosecutrix states that the defendant penetrated her person; and as the smallest penetration is sufficient to constitute the complete offense of rape, the defendant, if force had been proved to have been used, would have been entitled to

1 1 C. & K. 415 (1944).

be acquitted on this indictment, on the ground that the felony had been proved against him; but another important question is whether the defendant committed any assault at all on the prosecutrix.

Verdict, not guilty.

In State v. Brooks1 the court said: "The defendant was indicted and convicted of an assault with intent to commit rape on the person of P. Jane Williams.

"The material facts are as follows: The defendant was living with the husband of the prosecutrix, and usually slept in one end of the house, and the prosecutrix and her husband in the other end; there being a partition wall and door between them. Each room having an outer door. She had placed her bed on the floor in the month of August, and she and her husband were asleep upon it, the defendant having retired to sleep in his room. About eleven o'clock at night she 'was awakened and found some one in her bed with her. He had pulled up her clothing, and was trying to get on her, and she pushed him off, and turned over and awoke her husband and whispered to him, that there was a man in the room. Her husband got up, the defendant by this time had gotten to the outer door.'

"His Honor, charged the jury, among other things, 'that before they could find the defendant guilty, they must be satisfied that his intention was to ravish the prosecutrix, to have illicit connection with her by force and against her will, or that he intended to do so by committing a fraud upon her, by falsely personating her husband.'

"This is the only part of the case we find it necessary to consider, and we are of opinion that the alternative part of this instruction is erroneous.

"Rape is the carnal knowledge of any female of ten years or more, 'by force and against her will,' and an assault with intent to commit rape must be such as would amount to rape if the purpose had been accomplished. It is manifest that the defendant was endeavoring to have improper connection with the prosecutrix, but this may be a very different thing from an intent to commit rape. His intention, however, is a question for the jury. His Honor should have instructed the jury to consider, whether the defendant's intention was to accomplish his intention by force, if necessary; or by exciting and soliciting her consent without force; or by fraud in personating her husband, and that in the first view he was guilty, but in either of the others he was not guilty. In the second view, if he intended to desist on the first intimation of resistance, he is not guilty because there was no force against her will; and in the third view, he is not guilty, because fraud is not force, except in that class of cases where the prisoner has been in some way instrumental in disabling the prosecutrix to make resistance. This last view thas not been heretofore decided in this State, but was decided in England, as above indicated in Rex v. Jackson,2 and in a recent case (1868) of The Queen v. Barrow. In the latter case, the woman and her husband were sleeping together in bed, she between waking and sleeping, when she was completely awakened by a man having connection with her, who she thought was her husband. As soon as she discovered it was not her husband, she pulled at him to awake him, and the prisoner jumped off the bed. The court after mature consideration said: 'We have carefully considered the facts as stated in the case. It does not appear that the woman upon whom the

1 76 N. C. 1 (1877).

2 R. & R. C. C. 486.

3 1 Crown Cases Reserved, 156.

offense was alleged to have been committed, was asleep or was unconscious at the time when the act of connection commenced. It must be taken, therefore, that the act was done with the consent of the prosecutrix, though that consent was obtained by fraud. It falls, therefore, within the class of cases, which decide, that where consent was obtained by fraud, the act done does not amount to rape.'

"The cases cited in two leading criminal cases by Bennett & Heard are to the same conclusion, and such is our decision.

"Females are protected by law from violence of this kind, by the just infliction of the severest penalty on offenders, and every good citizen will be vigilant in seeing that such laws are fully and fairly administered in all proper cases; but where there is no coercion in any form and tricks and deception are employed to accomplish the same end, there, as against these, females are protected only by such laws as protect the whole community against fraud and imposition.

"There is error. Let this be certified, that further proceedings may be had according to law."

PER CURIAM.

§ 122.

Venire de novo.

Connection with Intoxicated Woman. — It has been held not rape where the woman does not resist, though such non-resistance is caused by intoxication.1

-

§ 123. Connection with Insane Woman. And the same conclusion has been reached when it appeared that the woman's will was weak by reason of insanity.2

§ 124. Rape-Consent of Woman Asleep. - In R. v. Sweenie, an exhaustive case, S. was indicted for rape, and the evidence was that he went into the bed where D.'s wife was asleep, and had connection with her while she was asleep. Held, that S. was not guilty of rape.

The indictment thus charged the offense: "In so far as on the night of the 16th, or the morning of the 17th day of March, 1858, or on one or other of the days of that month, or of February immediately preceding, within the house situated in or near Bellshill, in the parish of Bothwell and shire of Lanark, then and now or lately residing there, you, the said Charles Sweenie, did wickedly and feloniously invade by stealth the bed in the said house in which Catherine Devine, wife of, and now or lately residing with George Devine, wire worker, in or near Blackley Close, Gallowgate, in or near Glasgow, and did lie down beside her, and did attack and assault her, and did bring your naked person in contact with her naked person, and did introduce your private member into her private parts, and did have carnal knowledge of her when asleep, and without her consent did ravish her."

The counsel for the prisoner objected to the relevancy of the indictment, i.e., demurred on the ground that the facts set forth did not amount to rape. That there was no allegation of force or violence which was of the essence of

1 People v. Quin, 50 Barb. 128 (1867).

2 R. v. Connelly, 26 U. C. Q. B. 317.

38 Cox, 223 (1858).

the crime. Moreover, that it was doubtful whether it was possible for a man to have connection with a woman unknown to her, in natural sleep.

The judges having differed in opinion, delivered their opinions seriatim, as follows:

LORD ARDMILLAN. I have felt this case to be attended with great difficulty, and have anxiously considered it both on the authorities and on principle, but I shall not detain your lordships by stating my opinion at any length. We have here to deal only with relevancy. The public prosecutor offers to establish by evidence the facts which he avers. They may seem very improbable; with that we have no concern. Our part is to decide whether, if the facts as here alleged are proved, they amount to rape. I have, after much hesitation, arrived at the conclusion that the facts alleged do not amount to that crime. I am of the opinion that force, actual or constructive, is an essential element in the crime of rape; that any mode of overpowering the will without actual personal violence, such as the use of threats or drugs, is force in the estimation of law, and that any degree of force is sufficient in law to constitute the crime of rape, if it is sufficient in fact to overcome the opposing will of the woman, but it must be force employed to overcome the will; and I do not concur in the proposition maintained by the prosecutor that the mere bodily contact necessarily implied in the act of connection is sufficient force to satisfy the legal definition. There is, I think, no authority for such a proposition, and on principle it does not commend itself to my mind. In the case of a child, and perhaps also in some peculiar cases of insanity or imbecility, the law holds such persons to have no will in the matter of connection, and the act in such case, though not actually forcible, is forcible in the estimation of the law, according to the opinion of Baron Hume. Accordingly the element of force as applied to the overpowering of the will, is introduced by long settled legal presumption in every case of connection with a child. It is a presumption which can not be redargued; no proof of consent can set it aside; and the act of connection with a child is, in consequence of that presumption, uniformly and necessarily the crime of rape, not in respect of any lowering or modifying of the requisites of the crime, but in respect of that legal presumption which gathers from the infancy of the victim the force necessary to the definition of the crime. Except in the case of a child, actual force, or the means of overpowering the will equivalent to actual force, is, in my opinion, necessary to the crime of rape. In no case that I am aware of, has there ever been a charge of rape sustained without the element of such actual force or its equivalent, except in the case of a child. In the case of a child the element of force is introduced by legal presumption, but in that case also the act amounts to rape because in the eye of the law it is a forcible act; and thus the definition of the crime remains unimpaired. Now, if I am right in holding that the definition of rape is not satisfied, as regards the element of force, by the mere bodily contact implied in every act of connection, then in the case before us there is no amount of force, actual or constructive,

11 Hume's Crim. L. 301; Allison's Prin. 209; Hawkins' P. C. b. I. ch. 41, sec. 1; 4 Bla. Com. 210; 1 East P. C. 434; 1 Russ. Crimes, by Greaves, 675.

2 Taylor's Med. Jur. (5th ed.) 654; Smith's Foren. Med.; Beck's Med. Jur. 336; Pais' Med. Jur.; Montgomery on the Signs and Symptoms of Pregnancy,361 (2nd ed.); Bren.

delius, 96-9; Capuron, Médicine Légale relativ aux Accouchments, 57, 84; Etude Medico Legale sur les attentats aux Moers, par Alphonse Tardieu, Paris, 1858; Sedillot Manual Complet de Mediciné Légale, Bruxelles, 1833, p. 21-332; Briand Manual Complet de Mediciné Légale, Paris (5th ed.), 1852.

and none can enter into the act charged, unless we are prepared to introduce it by force of a legal presumption. No such presumption in the case of a sleeping woman, has yet been recognized by law. It does not, like the presumption in the case of a child, rest on the basis of undivided individual authority and of uniform judicial recognition. It is a new presumption never hitherto recognized, and though it may perhaps not be unreasonable, and there may be some affinities and analogies to support it, yet I am not prepared for the first time to establish it by our decision. Without such a presumption to introduce the element of force, it appears to me that the act here charged can not be tried as rape.

LORD IVORY. I have had great difficulty in forming an opinion, and that which I have formed I express with much hesitation. It is, moreover, an opinion different from the one I entertained when the case was first submitted to me. My opinion is that there is enough set forth to constitute the crime of rape. The definitions in the books are no doubt the having possession of the woman's person "forcibly and against her will," but this definition can not apply to the circumstances of the present case, where there could not be the resistance implied in the definition. There was no need of force for there was no resistance to overcome. It could not be against the will, because the will could not be exercised. The soundest definition of rape is that given by Lord Cockburn, i.e., "having intercourse without the woman's consent," and "where consent can not in the circumstances be had, the law presumes rape." It is the absence of consent that constitutes the essential element in rape. Why is it that, in the case of children and of insane persons, the law says that rape is committed? Because it holds that in these cases no consent can be obtained; and therefore it is "the absence of consent," and not "the employment of force," that the law chiefly regards. The presence of consent on the part of the woman is necessary to prevent criminality. The law holds that if that consent had not been obtained, positive force would have been necessary had she been conscious; and it introduces in every case constructive force when she is in such a condition that positive force is not required. If we hold that this is not rape there are many cases of a most serious kind which we will not be able to touch. It will effect a most unwise loosening of our law as regards this crime, and will imperil the whole progress that has been made as to the doctrine of constructive force.

LORD COWAN. I have approached the consideration of this question as one of extreme delicacy and one not unattended with difficulty, and I am of opinion that the facts as stated in this indictment do not amount to the crime of rape. It is of the essence of the crime of rape that carnal knowledge of the woman's person should be had forcibly and without her consent-in other words, by the adverse will of the woman to the act being overcome by force on the part of the ravisher. It is this that constitutes the crime according to all the authorities; and nothing short of it will support the charge. A distinction is alleged to obtain between the terms "without the consent" and "against the will," and it is contended by the Crown that the former is the more accurate, and is sufficient to support this charge. Even if it were the more accurate view - which I do not stop to inquire, but do not admit it can not be of moment in this argument. For still the act must have been perpetrated forcibly; and where is force charged in this indictment? Nowhere, as an actual fact substantially alleged. Constructively it is said that in the absence of consent, which is assumed from