47

the time of the act may be given by herself, or by members of her family; but declarations by her to others upon this point are inadmissible.** Medical expert opinion evidence is admissible, and it is always proper for the jury to take into consideration the appearance of the child.50 Whether the child was within the age of consent or not is a fact for the jury to decide;51 but when the accused admits that she was, the question need not be submitted to the jury.52 On the other hand, when the only evidence upon the point is that given by the child the trial court errs in assuming that the fact is established.53 Some statutes make

it essential to conviction that the child shall have been of previous chaste character;54 but under these statutes the defendant can not take advantage of his own act in previously destroying her chastity.

§ 437. Consent obtained by fraudulent representation of physician. When a medical practitioner falsely and fraudulently represents to a patient that coition is an essential part of the treatment in her case, and owing to her belief in the representation she consents to connection with him, he is not guilty of rape. The reason is she consents to the act.5

46 Commonwealth v. Hollis, 170 Mass. 433, 49 N. E. 632; People v. Bernor, 115 Mich. 692, 74 N. W. 184; Dodge v. State, 100 Wis. 294, 75 N. W. 954; State v. Lacey, 111 Mo. 513, 20 S. W. 238.

47 People v. Bernor, 115 Mich. 692, 74 N. W. 184; Lawrence V. State, 35 Tex. Cr. 114, 32 S. W. 530; George v. State, 61 Nebr. 669, 85 N. W. 840.

48 State v. Deputy, 3 Penn. (Del.) 19, 50 Atl. 176.

49 State v. Smith, 61 N. Car. 302; Lawrence v. State, 35 Tex. Cr. 114, 32 S. W. 530.

50 Commonweatlh v. Hollis, 170 Mass. 433, 49 N. E. 632; People v.

55

Dickerson, 58 App. Div. (N. Y.) 202, 68 N. Y. S. 715, 15 N. Y. Cr. 365; State v. McNair, 93 N. Car. 628.

51 People v. Webster, 111 Cal. 381, 43 Pac. 1114.

52 People v. Baldwin, 117 Cal. 244, 49 Pac. 186.

53 People v. Webster, 111 Cal. 381, 43 Pac. 1114.

54 State v. Dacker, 59 Wash. 238, 109 Pac. 1050, 30 L. R. A. (N. S.) 173; State v. Sargent, 62 Wash. 692, 114 Pac. 868, 35 L. R. A. (N. S.) 173.

55 Don Moran v. People, 25 Mich. 356, 12 Am. Rep. 283n; Walter v. People, 50 Barb. (N. Y.) 144; State

On the other hand, when a medical practitioner, under pretense of making a professional examination of her person, or of performing a surgical operation, has connection with her, and she is ignorant of the nature of the act, he is guilty of rape. And the reason is she does not consent to the act.56

§ 438. The act itself-Penetration-Emission.-Carnal knowledge of the person of the female is an essential element of rape. And to have carnal knowledge there must be penetration.57 The slightest penetration, however, is sufficient.58 The fact of penetration does not have to be shown by the prosecutrix herself,59 nor does it have to be established by direct evidence.60

Under the early common law, emission was not considered an essential element of rape.61 Later, however, it was

v. Murphy, 6 Ala. 765, 41 Am. Dec. 79; Bloodworth v. State, 6 Baxt. (Tenn.) 614, 32 Am. Rep. 546; Reg. v. Barrow, L. R. 1 C. C. 156, 11 Cox Cr. C. 191, Beale's Cases, 455; Reg. v. Fletcher, L. R. 1 C. C. 39, 10 Cox Cr. C. 248.

56 Pomeroy v. State, 94 Ind. 96, 48 Am. Rep. 146; Eberhart v. State, 134 Ind. 651, 34 N. E. 637; Reg. v. Flattery, 13 Cox Cr. C. 388, 46 L. J. M. C. 130; Reg. v. Case, 1 Den. Cr. C. 580 (quoted in Pomeroy v. State, 94 Ind. 96, 48 Am. Rep. 146); Walter v. People, 50 Barb. (N. Y.) 144; People v. Crosswell, 13 Mich. 427, 87 Am. Dec. 774.

57 Galaviz v. State (Tex. Cr.), 198 S. W. 946; State v. Dalton, 106 Mo. 463, 17 S. W. 700. See also State v. Carnagy, 106 Iowa 483, 76 N W. 805; White v. Commonwealth, 96 Ky. 180, 28 S. W. 340, 16 Ky. L. 421; People v. Tench,

167 N. Y. 520, 60 N. E. 737; People v. Courier, 79 Mich. 366, 44 N. W. 571.

58 People v. Courier, 79 Mich. 366, 44 N. W. 571; State v. Grubb, 55 Kans. 678, 41 Pac. 951; White v. Commonwealth, 96 Ky. 180, 28 S. W. 340, 16 Ky. L. 421; 1 East P. C., ch. 10, § 3; 1 Hale P. C. 628; State v. Sullivan, Add. (Pa.) 143; Brauer v. State, 25 Wis. 413; Reg. v. Jordan, 9 Car. & P. 118.

59 State v. Tarr, 28 Iowa 397. 60 Taylor v. State, 111 Ind. 279, 12 N. E. 400; White v. Commonwealth, 96 Ky. 180, 28 S. W. 340, 16 Ky. L. 421; Commonwealth v. Hollis, 170 Mass. 433, 49 N. E. 632; State v. Carnagy, 106 Iowa 483, 76 N. W. 805; Bish. Stat. Crimes (3rd ed.), § 488.

61 1 Hale P. C. 628; Rex v. Sheridan, 1 East P. C. 438.

expressly adjudged essential. 62 The statute of Geo. IV provides that proof of emission is not necessary;63 and this rule obtains in England to-day. In this country a few courts have held that proof of emission is essential; but the great

65

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weight of authority is to the contrary. In some of the states, including New York and Michigan, statutes have been passed expressly providing that proof of emission is not essential. And in a few cases it has been held that emission is presumed from the fact of penetration.66

§ 439. Incapacity of male-Boy under fourteen.—A male person who is impotent and incapable of copulation can not commit rape. To be capable of committing this crime a man must have physical capacity to perform the act of carnal knowledge. And evidence which tends to show that the accused at the time of the alleged offense was in a greatly debilitated condition from a previous debauch is admissible and constitutes a circumstance, however light, to be considered by the jury in ascertaining whether he was physically capable or not of committing the offense.67 When, however, he is capable of penetration, though incapable of emission or procreation, he has capacity to commit rape.

At the early common law a boy under fourteen years of age was conclusively presumed incapable of committing rape; and testimony tending to show capacity was inadmissible.68 This rule is followed by some of the courts of this

62 Hill's Case (1781), 1 East P. C. 439. See also Rex v. Burrows, Russ. & R. 519.

639 Geo. IV, ch. 31, § 18.

64 Brown v. State, 76 Ga. 623; Blackburn v. State, 22 Ohio St. 102; State v. Gray, 53 N. Car. 170.

65 Harris v. State, 72 Fla. 128, 72 So. 520; Waller v. State, 40 Ala. 325; Taylor v. State, 111 Ind. 279, 12 N. E. 400; State v. Rollins, 80 Minn. 216, 83 N. W. 141; Barker

v. State, 40 Fla. 178, 24 So. 69.

66 Comstock v. State, 14 Nebr. 205, 15 N. W. 355; State v. Sullivan, Add. (Pa.) 143.

67 Nugent v. State, 18 Ala. 521. 681 Hale P. C. 630; Step. Dig. Crim. L., art. 271; Rex v. Groombridge, 7 Car. & P. 582; Reg. v. Phillips, 8 Car. & P. 736; Reg. v. Waite (1892), 2 Q. B. Div. 600, 61 L. J. M. C. 187, 17 Cox Cr. C. 554.

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country, and repudiated by others. Many courts hold that the presumption of incapacity is disputable, and testimony tending to show capacity admissible.70

In Louisiana it has been Leld that even a disputable presumption of incapacity does not exist.71

73

§ 440. Criminal responsibility of husband or wife.-A husband can not commit rape on his wife by having carnal knowledge of her by force and against her will.72 Nor is a wife a competent witness against her husband in a prosecution against him for a rape committed on her prior to their marriage but defendant's marriage to the woman after the offense is not a defense to a charge of rape.74 Ordinarily, however, a wife is a competent witness in a criminal prosecution against her husband whenever she is the person particularly and directly injured or affected by the crime for which he is being prosecuted.75 Thus a wife is a competent witness against her husband in a criminal prosecution against him for incest.76

69 Chism v. State, 42 Fla. 232, 28 So. 399; Foster v. Commonwealth, 96 Va. 306, 31 S. E. 503, 42 L. R. A. 589, 70 Am. St. 846; Stephen v. State, 11 Ga. 225.

70 Williams v. State, 14 Ohio 222, 45 Am. Dec. 536; Heilman v. Commonwealth, 84 Ky. 457, 1 S. W. 731, 8 Ky. L. 451, 4 Am. St. 207; Gordon v. State, 93 Ga. 531, 21 S. E. 54, 44 Am. St. 189; Wagoner v. State, 5 Lea (Tenn.) 352, 40 Am. Rep. 36; State v. Handy, 4 Harr. (Del.) 566; State v. Fisk, 15 N. Dak. 589, 108 N. W. 485, 11 Ann. Cas. 1061; Hiltabiddle v. State, 35 Ohio St. 52, 35 Am. Rep. 592.

71 State v. Jones, 39 La. Ann. 935. 3 So. 57. See also State v. Coleman, 54 S. Car. 162, 31 S. E.

721 Hale P. C. 629; State v. Haines, 51 La Ann. 731, 25 So. 372, 44 L. R. A. 837; Reg. v. Clarence, 16 Cox Cr. C. 511, Derby's Cases 272; Frazier v. State, 48 Tex. Cr. 142, 86 S. W. 754, 122 Am. St. 738, 13 Ann. Cas. 497.

73 State v. Evans, 138 Mo. 116, 39 S. W. 462, 60 Am. St. 549.

74 State v. Falsetta, 43 Wash. 159, 86 Pac. 168, 10 Ann. Cas. 177. 75 Commonwealth v. Sapp, 90 Ky. 580, 14 S. W. 834, 12 Ky. L. 484, 29 Am. St. 405n; Dill v. People, 19 Colo. 469, 36 Pac. 229, 41 Am. St. 254. See also extended note to State v. Boyd, 27 Am. Dec. 377381.

76 State v. Chambers, 87 Iowa 1, 53 N. W. 1090, 43 Am. St. 349.

When a husband, however, aids or abets a third person to have carnal knowledge of the former's wife, forcibly and against her will, the husband is guilty of rape. If present at the time of the act he is a principal in the second degree; and if absent he is an accessory before the fact."

And, upon the same principle, a woman may be guilty of rape when she aids or abets her husband, or any other man not the husband of the victim, to have carnal knowledge of another woman forcibly and against her will.78

§ 441. Chastity of the victim.-In the case of seduction, chastity of the victim is an essential element of the offense. In the crime of rape, however, chastity of the victim is not an essential element.79

It has been held that in a prosecution for rape testimony of want of chastity in the prosecutrix is inadmissible.80 This however, is not the better view, nor the weight of authority.81 The purpose of admitting it is to show that she probably consented to the act, or if under age of consent to show her credibility,82 Rape, however, can be committed on a common prostitute. But, in an early English case it was held that prior voluntary intercourse between the parties constituted a defense.88 This, however, is not the rule now.

77 People v. Chapman, 62 Mich. 280, 28 N. W. 896, 4 Am. St. 857; State v. Dowell, 106 N. Car. 722, 11 S. E. 525, 8 L. R. A. 297n, 19 Am. St. 568.

78 Campbell v. State, 63 Tex. Cr. 595, 141 S. W. 232, Ann. Cas. 1913 D, 858.

79 State v. Long, 93 N. Car. 542; Wood v. State, 80 Tex. Cr. 398, 189 S. W. 474; Harper v. State, 185 Ind. 522, 114 N. E. 4.

80 State v. Williamson, 22 Utah 248, 62 Pac. 1022, 83 Am. St. 780. See also State v. Dacker, 59 Wash.

238, 109 Pac. 1050, 30 L. R. A. (N. S.) 173.

81 State v. Taylor, 57 S. Car. 483, 35 S. E. 729, 76 Am. St. 575. See also note to Smith v. State, 80 Am. Dec. 368; State v. Burns (Utah), 168 Pac. 955; State v. Weber, 272 Mo. 475, 199 S. W. 147.

82 State v. Apley, 25 N. Dak. 298, 141 N. W. 740, 48 L. R. A. (N. S.) 269n.

83 Reginald's Case, Warwickshire Eyre, 1221, Select Pleas of the Crown (Sel. Soc.) Pl. 166.