§ 422. Proof of the corpus delicti.-To convict a person of felonious homicide the law requires clear proof of the corpus delicti. The corpus delicti includes two things: (1) The fact of death; and (2) the fact that it was effected by means of human agency. Whether the corpus delicti can be established solely by circumstantial evidence or not is a question upon which the authorities are not agreed.1 All agree, however, that the evidence upon this point must be clear and convincing to sustain a conviction.**

434 Bl. Comm. 358.

44 People v. Videto, 1 Parker Cr. R. (N. Y.) 603; Tawell's Case, Icited in Willis' Cir. Ev. (5th Am. ed.) 204; People v. Wilson, 3 Park. Cr. R. (N. Y.) 199, Starkie Ev. (10th Am. ed.) 862; 3 Greenl. Ev.

43

(16th ed.), §§ 30, 131; Burr. Cir. Ev., § 682. See also Wills' Cir. Ev. 156-170; Whart. Crim. L (11th ed.), §§ 349-363; Best on Presump. 271-276; 3 Russ. on Crimes (6th ed.) 158; Ruloff v. People, 18 N. Y. 179, Knowlton's Cases 124.

§ 425. Definition.-Rape consists in the act of having carnal knowledge, by a man, of a woman other than his wife, forcibly and against her will, or without her conscious permission, or where her permission has been extorted by force or fear of immediate bodily injury.

Among other definitions by standard authorities are the following: "Rape is the unlawful carnal knowledge of a woman by force and against her will;" "rape is when a man hath carnal knowledge of a woman by force and against her will;" "rape is the carnal knowledge of any woman above the age of ten years against her will, and of a woman-child

11 East P. C. 434.

22 Coke's Inst. 180.

under the age of ten years with or against her will;" "it seems that rape is an offense in having unlawful and carnal knowledge of a woman by force and against her will;"4 "rape is the carnal knowledge of a woman forcibly and against her will;" "rape has been defined to be the having unlawful and carnal knowledge of a woman by force and against her will;" "rape is the having of unlawful carnal knowledge, by a man of a woman, forcibly and against her will."

§ 426. "Against her will"-"Without her consent"-It has been suggested that the phrases "against her will" and "without her consent" are to be distinguished. "The question is, what is the real definition of the crime of rape, whether it is the ravishing of a woman against her will, or without her consent. If the former is the correct definition, the crime is not in this case proved; if the latter, it is proved." It is to be observed, however, that this view, which has given rise to confusion upon this subject, is erroneous. The phrases are synonymous.

§ 427. Scope of the resistance.-Must the woman resist "to the uttermost?" Upon this question the authorities are not harmonious. Many of the decisions hold that she must use all the resistance in her power under the circumstances up to the time of the intercourse; that is, until exhausted or overpowered. 10

31 Hale P. C. 628. See also State v. Brooks (Iowa), 165 N. W. 194; State v. Shellman (Mo.), 192 S. W. 435; Gray v. State, 125 Ark. 272, 188 S. W. 820; State v. Volz, 269 Mo. 194, 190 S. W. 307.

41 Hawk P. C. (Curw. ed) 122. 54 Bl. Comm. 210.

61 Russ. on Crimes (9th Am. ed.) 904.

72 Bish. New Crim. L. (8th ed.), § 1113.

8 Lord Chief Justice Campbell in Reg. v. Fletcher, Bell Cr. C. 63, 8 Cox Cr. C. 131.

9 Commonwealth v. Burke, 105 Mass. 376, 7 Am. Rep. 531, Beale's Cases 457, Derby's Cases 334.

10 O'Boyle v. State, 100 Wis. 296, 75 N. W. 989. See aso State v.

On the other hand, it has been held "that there was no rule of law requiring a jury to be satisfied that the woman, according to their measure of her strength, used all the physical force in opposition of which she was capable," and that it is enough that by word and act she showed her unwillingness.12

§ 428. Consent induced by fraud.-Upon this question, also, the authorities are not harmonious. By the weight of authority, however, when the woman understands the nature of the act, and her consent is obtained by fraud, the offense is not rape.

13

§ 429. Fraudulently represents marriage ceremony legal. -When a man fraudulently represents to a woman that an illegal marriage to her is legal, and has carnal knowledge of her, induced by her belief in his fraudulent misrepresentation, he is not guilty of rape.14

§ 430. Man fraudulently personates the woman's husband. At common law, when a man fraudulently personates a woman's husband and thereby has carnal knowledge of her he is not guilty of rape,15 and it is held that fraud and

Ward, 73 Iowa 532, 35 N. W. 617; People v. Dohring, 59 N. Y. 374, 17 Am. Rep. 349; Brown v. State, 127 Wis. 193, 106 N. W. 536, 7 Ann. Cas. 258. See also State v. Cowing, 99 Minn. 123, 108 N. W. 851, 9 Ann. Cas. 566.

11 Commonwealth v. McDonald, 110 Mass. 405.

12 State v. Sudduth, 52 S. Car. 488, 30 S. E. 408; State v. Shields, 45 Conn. 256.

13 Reg. v. Barrow, L. R. 1 C. C. 156, 11 Cox Cr. C. 191, Beale's Cases 455; Wyatt v. State, 2 Swan (Tenn.) 394; Don Moran v. Peo

ple, 25 Mich. 356, 12 Am. Rep. 283; Commonwealth v. Fields, 4 Leigh (Va.) 648; Bloodworth v. State, 6 Baxt. (Tenn.) 614, 32 Am. Rep. 546; Reg. v. Fletcher, L. R. I. C. C. 39, 10 Cox Cr. C. 248.

14 State v. Murphy, 6 Ala. 765, 41 Am. Dec. 79. See also Bloodworth v. State, 6 Baxt. (Tenn.) 614, 32 Am. Rep. 546. But see Wilkerson v. State, 60 Tex. Cr. 388, 131 S. W. 1108, Ann. Cas. 1912 C. 126n.

15 Reg. v. Barrow, L. R. 1 C. C. 156, 11 Cox Cr. C. 191, Beale's

stratagem can not be substituted for force, as an element of this offense.1 16 On the other hand, there are decisions which hold the contrary view. Thus, in a leading Irish case, where a man personated a woman's husband and thereby had connection with her he was held guilty of rape.17 In England, and in a few of the states of this country, statutes have been passed which make having carnal knowledge of a woman by falsely personating her husband rape.18

§ 431. Woman insane or idiotic.-When a woman is insane or idiotic, and does not know the nature of the act, carnal knowledge of her by a man other than her husband, who is charged with knowledge of her mental condition, constitutes rape.19 If, however, she consents from passion, morbid desires or animal instincts, the offense is not rape. Nor is it rape when the man does not know that the woman is incapable of giving consent and uses no actual force to compel her to submit to the act.21 The mere fact that a woman is weak-minded does not show incapacity to give consent. A woman who lacks mental capacity to make a contract may have capacity to consent to sexual intercourse. But when a man has sexual intercourse with a woman, other than his wife, of such weak and disordered mind that she

Cases 455; Wyatt v. State, 2 Swan (Tenn.) 394; Don Moran v. People, 25 Mich. 356, 12 Am. Rep. 283; State v. Brooks, 76 N. Car. 1.

Swan

16 Wyatt V. State, 2 (Tenn.) 394; Rex v. Jackson (1822) Russ. & R. 487 (earliest reported case); Reg. v. Barrow, L. R. 1 C. C. 156, 11 Cox Cr. C. 191, Beale's Cases 455.

17 Reg. v. Dee, L. R. 14 Ir. 468, 15 Cox Cr. C. 579.

18 48 & 49 Vict. ch. 69, § 4; State v. Wiliams, 128 N. Car. 573, 37 S. E. 952; Mooney v. State, 29 Tex. App. 257, 15 S. W. 724.

19 Gore v. State, 119 Ga. 418, 46 S. E. 671, 100 Am. St. 182 (an excellent case); People v. Crosswell (Cornwell), 13 Mich. 427, 87 Am. Dec. 774; Reg. v. Fletcher, Bell Cr. C. 63, 8 Cox Cr. C. 131; Reg. v. Mayers, 12 Cox Cr. C. 311; Bloodworth V. State, 6 Baxt. (Tenn.) 614, 32 Am. Rep. 546. 20 23 Am. & Eng. Encyc. L. (2d ed.) 856.

21 Roscoe's Crim. Ev. (8th ed.) 1118. See also State v. Cunningham, 100 Mo. 382, 12 S. W. 376; State v. Warren, 232 Mo. 185. 134 S. W. 522, Ann. Cas. 1912 B, 1043n.