CHAPTER I.

RAPE, ABDUCTION, CARNAL ABUSE OF CHILDREN, AND SE

DUCTION.

§ 261. Rape defined.

$262. When physical ability must be proved.
$263. Penetration sufficient.

§ 264. Punishment of rape.

$265. Abduction of women.

$266. Seduction for purposes of prostitution.

§ 267. Abduction.

261. Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances:

1. Where the female is under the age of ten years.

2. Where she is incapable, through lunacy or any other unsoundness of mind, whether temporary or permanent, of giving legal consent.

3. Where she resists, but her resistance is overcome by force or violence.

4. Where she is prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution; or by any intoxicating, narcotic, or anæsthetic substance, administered by or with the privity of the accused.

5. Where she is, at the time, unconscious of the nature of the act, and this is known to the accused.

6. Where she submits, under a belief that the person committing the act is her husband, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce such belief.

Rape defined.-Rape is the unlawful carnal knowledge of a female, by force, without her consent-4 Bl. Com. 210; 2 Arch. C. Pr. 152; 1 East P. C. 434; of any woman above the age of ten years, unlawfully, against her will-12 Ark. 389; 11 Ga. 225; 39 Me. 22; 9 Mich. 150; 47 Miss. 609; 25 Wis. 364; without her consent, and against her will, are

synonymous-47 Cal. 447; 105 Mass. 376; see 110 id. 405; 53 Mo. 65; 36 Mich. 203; see Bell C. C.71; that it was against her will may be inferred from the circumstances-35 Geo. 263. "Carnal knowledge" means sexual commerce-97 Mass. 59. A woman ceases to be a child when she reaches the age of puberty-22 Ohio St. 102; S. C. 1 Green C. R. 660.

262. No conviction for rape can be had against one who was under the age of fourteen years at the time of the act alleged, unless his physical ability to accomplish penetration is proved as an independent fact, and beyond a reasonable doubt.

Presumption of incapacity.-The presumption is, that a boy under fourteen years is incapable of committing rape-14 Ohio, 222; Winst. 300; 7 Jones, (N. C.)61; 11 Ga. 225; 3 Car, & P. 396; 7 id. 582; 8 id. 736; 9 id. 118; but this presumption may be rebutted-2 Parker Cr. R. 174; 14 Ohio, 222. That the presumption is irrebuttable-see 4 Har. (Del.) 566; 7 Jones, (N. C.) 61; Winst. 300; 9 Car. & P. 366. A boy under fourteen may be liable as an aider and abettor-19 Mass. 380.

263. The essential guilt of rape consists in the outrage to the person and feelings of the female. Any sexual penetration, however slight, is suficient to complete the crime.

Female under ten years.-It is rape whether the carnal knowledge was with her consent or not-11 Ga. 225; 6 Tex. Ct. App. 525; 7 id. 342. The law conclusively presumes that a child under ten years is incapable of giving consent-14 Ired. 224; 56 Ga. 36; S. C. 2 Am. Cr. R. 589; 11 Ga. 325; 26 Up. Can. Q. B. 320. So consent of a child of tender years is no consent-29 Ark. 116; 11 Ga. 225; 4 Har (Del.) 566; 1 Hill, 351; 12 Iowa, 66; 1 Leigh, 588; 9 Mich. 150; 76 N. C. 269; 12 Ohio St. 466; 17 id. 515; 26 Up. Can. Q. B. 323; 9 Car. & P. 213; 10 Cox C. C. 144; id. 157. So force is not necessary in case of a child under ten years55 Ga. 303; 11 id. 226.

Carnal abuse of children.-Carnal knowledge of a child by her consent is not properly rape, although punished in the same manner -2 Va. Cas. 235; 47 Miss. 60); 25 Wis. 364. Force and resistance are not the essential elements--11 Nev. 255; 4 Cent. L. J. 525; 55 Ala, 264. Abuse is understood as limited to the genital organs in an attempt at carnal knowledge, falling short of penetration-58 Ala. 376.

Subd. 2. Incapacity to give consent through idiocy or mania-26 Up. Can. Q. B. 323.

Subd. 3. Force and resistance.-Force, actual or constructive, is a necessary ingredient-53 Cal. 62; 30 Ala. 54; 55 id. 453; 9 Fla. 163; 50 Barb. 144; 32 Ark. 704; 1 Wheel. C. C. 378. It is incident to the physical character of the act-35 Ga. 263. See 110 Mass. 455; 32 N. Y. 525; 3 Cox C. C. 543; even if she is a common strumpet, or a kept mistress of the ravisher-52 Ala. 334; 4 Humph. 194; 8 Eng. 360; 1 Hun, 307; 3 Car. & P. 589. No particular amount of force is necessary-2 Iowa, 566. See 52 Ind. 187, 59 N. Y. 374. The amount of force and resistance depend on the relative strength of the parties, and other circumstances-45 N. H. 148; 35 Ga. 263; 74 N. C. 425; 2 Tex. Ct. App. 346; 6 id. 524. There must be on the part of the female the utmost resistance-53 Mo. 65; 24 Mich. 1; see 110 Mass. 405; 49 Ga. 185; 1 Tex. Ct. App. 346; until she is exhausted or overpowered-59 N. Y. 374; her utmost resist.

ance according to her lights is sufficient-110 Mass. 405; 49 Ga. 185. See 52 Ind. 187; 59 N. Y. 374. Where the resistance was of such equivocal character as to suggest actual consent or a not decided opposition, a conviction cannot be sustained-47 Cal. 450.

Constructive force.-The force may be constructive-53 Ala. 453; S. C. 2 Am. Cr. R. 583; 36 Mich. 203; S. C. 2 Am. Cr. R. 556; as, where the woman, by means of drugs, liquors, etc., is rendered insensible-105 Mass. 376; 7 Conn. 54; 30 Ala. 54. See 54 Me. 24; 12 Cox C. C. 311; S. C. 1 Green C. R. 317; but see 4 Leigh, 648; 50 Barb. 123.

Subd. 4. Preventing resistance.-Ceasing resistance under fear of death or great bodily harm, makes the consummated act rape-3 Ala. 54; 13 Ark. 360; 21 Kan. 138; 2 Swan, 394; 4 Fost. & F. 967. The offense may be committed, though the woman at last yielded to the violence, if her consent was forced by fear of death, or by duress-33 Mich. 363; 4 Humph. 194; 9 Car. & P. 748. It is not necessary that she have a reasonable appréhension of death-40 Ala. 325; it is sufficient if she considered resistance dangerous, or absolutely useless-33 Mich. 363; 4 Humph. 194; 9 Car. & P. 748. The circumstances calculated to give effect to the violence or threats are to be considered on the question of duress-45 N. H. 148; 35 Ga. 263; 74 N. C. 425; 2 Tex. Ct. App. 346. She must be quite overcome by fear and terror, with as much resistance as possible under the circumstances-16 Up. Can. C. P. 379. See 30 Ala. 54; 3 Ark. 360; 21 Kan. 138; 2 Swan, 394. It is a question for the jury to determine-9 Car. & P. 722; 6 Cox C. C. 64; 16 Up. Can. C. P. 379.

Administering drugs, with intent to inflame the passions, is an assault-114 Mass. 303; 5 Mich, 10; see 1 Wheel. C. C. 490; otherwise at common law-54 Ind. 128; 1 Cox C. C. 282; 2 Car. & K. 912.

Subd. 5. Unconscious submission during sleep is no consent-12 Cox C. C. 311; S. C. 1 Green C. R. 317; 35 Ga. 263; or, where she was intoxicated-54 Me. 24; 105 Mass. 376.

Subd. 6. Artifice and fraud.-Acquiescence by a married woman, mistaking defendant for her husband, is no defense-50 Barb. 144; Russ. & R. C. C. 487; S. C. 2 Lead. C. C. 254; as, where the act was stealthily committed, she being under such impression-7 Conn. 54. Contra, 2 Swan, 394; 30 Ala. 54; 76 N. C. 1. Where carnal knowledge was obtained under circumstances which induced the woman to suppose the defendant was her husband, it is not rape, was held in 105 Mass. 376; 1 Wheel. C. C. 378; 13 Ark. 360; 6 Eng. 359; 6 Cox C. C. 412: 8 id. 223; 13 Up. Can. Q. B. 116; 11 Cox C. C. 191; 8 Car. & P. 265; but the party would be liable for an assault-8 Car. & P. 265; id. 256; 7 Jones, (N. C.) 61. See 3 Car. & P. 396.

Penetration.-When committed forcibly and against the consent of the female, proof of actual penetration is sufficient-40 Ala. 325. The slightest penetration is sufficient-Addis. 143; 3 Brev. 339; 40 Ala. 325; 11 Ga. 225; Phill. (N. C.) 231; 65 N. C. 466; 11 Serg. & R. 177; 1 Va. Cas. 307; 43 Tex. 189; id. 583; 1 Swin. 98; 23 Iowa, 397; disapproving 8 Jones, (N.C.) 170; see 25 Wis. 413; 1 Car. & K. 393; 9 Car. & P. 31; id. 118; and penetration may be inferred from circumstances-36 Cal. 522; 23 Iowa, 397; Phill. (N. C.) 231; 25 Wis. 413. It is not necessary that the hymen should be ruptured-5 Car. & P. 321; 8 id. 641; 9 id. 752; nor is emission necessary-Addis. 143; Phill. (N. C.) 231; 63 Ñ. C. 7; 65 id. 466; 40 Ala. 325; 1 Va. Cas. 307; 22 Ohio St. 102.

264. Rape is punishable by imprisonment in the State prison not less than five years.

Punishment.-The punishment is the same, whether the act be done on a female over ten years or under that age-4 Gray, 7.

The offense is a felony-7 Tex. Ct. App. 372.

Liability of parties.-All persons present, aiding or assisting, are principals, but they must be actually aiding and assisting-45 Cal. 293; 24 Mich. 1; see 12 Bush, 18; 46 Iowa, 265; so a person standing by, but doing no act to aid or assist, is not guilty-45 Cal. 293. A person cannot be convicted on the uncorroborated testimony of the woman--51 Cal. 371; S. C. 2 Am. Cr. R. 530; 46 Cal. 510; 6 id. 221; 44 Iowa, 82; see 29 Conn. 389; but her testimony may be corroborated by her own prior statements see Whart. Cr. Ev. § 273; 1 Whart. C. L. 8th ed. § 566.

265. Every person who takes any woman unlawfully, against her will, and by force, menace, or duress, compels her to marry him, or to marry any other person, or to be defiled, is punishable by imprisonment in the State prison not less than two nor more than fourteen years.

Abduction for marriage.-Abduction for marriage by any sinister means, either by violence, deceit, conspiracy, or any corrupt or improper practices for the purpose of marriage, is an offense at common law-3 State Tri. 519; and physical force or violence is not essential8 Iowa, 447; and consent extorted by threats, fraud, or otherwise, is no consent-20 Ill. 315; see 24 Tex. 133. If the female be under fifteen years of age, and without parents or legal guardian, those who have her under their care are deemed to have the legal custody of her-8 Iowa, 447; Stat. 1871-2, 380.

266. Every person who inveigles or entices any unmarried female, of previous chaste character, under the age of eighteen years, into any house of ill-fame or of assignation, or elsewhere, for the purpose of prostitution; or to have illicit carnal connection with any man; and every person who aids or assists in such inveiglement or enticement; and every person who, by any false pretenses, false representation, or other fraudulent means, procures any female to have illicit carnal connection with any man, is punishable by imprisonment in the State prison not exceeding five years, or by imprisonment in the county jail not exceeding one year, or by a fine not exceeding one thousand dollars, or by both such fine and imprisonment. [Approved March 30th, in effect July 1st, 1874.]

Abduction for purposes of prostitution.-The taking and detaining of an adult female, when not accomplished with violence, was not an offense at common law-5 Rand. 628; 3 Barb. 603. The gist of the statutory offense is the enticing and taking away-90 Ill. 274; 8 Cox C. C. 238. The intent must be to reduce the female to a condition of prostitution, or concubinage-90 Ill. 274; 8 Cox. C. C. 238; or of placing her in a house of ill-fame, or elsewhere, to be a prostitute-12 Met. 93. "Purpose of prostitution" means indiscriminate criminal intercourse with men-6 Parker Cr. R. 129; 8 Barb. 603; 8 Iowa, 447; 52 Ind. 526; S. C. 1 Am. Cr. R. 25; 54 Me. 24; an intention to obtain her for his own carnal enjoyment is not prostitution-1 Car. & M. 254; it is a distinct offense-49 Cal. 11; 12 Met. 93; mere seduction will not amount to the

offense-49 Cal. 11; 90 Ill. 274; see 54 Me. 24. A purpose of concubinage or of marriage will not be implied where the man is already mar ried-6 Parker Cr. R. 129. Chaste character means personal virtue, chaste up to the commencement of the acts of defendant-8 Barb. 603; as distinguished from good repute-52 Ind. 426; 8. C. 1 Am. Cr. R. 28; 26 N. Y. 203; 32 Iowa, 88; 5 id. 339; id. 430. The prosecution must allege and prove the chaste character of the female-49 Cal. 10; and prima facie proof, by presumption from other facts, is sufficient-49 Cal. 10.

Seduction.-To seduce a female, is not an offense within section 266 of the Penal Code. This section refers to one who procures the grat ification of the passion of lewdness in another 49 Cal. 11: Indecent liberties with females are acts classed as solicitations distinguishing seduction from rape-53 Cal. 62.

Adultery-Proof of notoriety is as material as proof of the fact of adultery-46 Cal. 52.

Adultery at common law.-Adultery is the illicit commerce of two persons of the opposite sex, one of whom at least is married-6 Ala. 864; 1 Ashm. 269; 2 Blackf. 318; 6 Cush. 178; 11 Ga. 53; 6 Gratt. 672; 2 Dall. 124; 58 Ill. 59: S. C. 1 Green C. R. 655; 22 lowa, 364; 43 Me. 258; 36 id. 261; 2 Met. 190; S. C. 2 Lead. C. C. 29; 21 Pick. 509; 33 Pa. St. 68; 9 N. H. 515; 1 Pin. (Wis.) 91; 56 Ind. 263; 1 Har. (Del.) 380; 4 Minn. 335. The definition varies with the local statutes-7 Conn. 567; 9 N. H. 515; N. C. Term. Rep. 165; which follow the common law-2 Bail, 149; 5 Rand. 527; id. 634; 16 Vt. 551, and which follow the ecclesiastical law. See Desty's Crim. Law, § 88 a. The living together must be open and notorious-46 Cal. 52; 58 Ill. 59; S. C. 1 Green C. R. 655; 56 Mo. 147; 42 Miss. 334; 1 Mont. 359; S. C. 2 Am. Cr. R. 159. One act is not sufficient46 Cal. 53; 14 Ala. 608; 13 Ill. 597; 58 id. 60; S. C. 1 Green C. R.; 39 Ala. 554; 56 Me. 147; 37 Tex. 346; 1 Pin. (Wis.) 641. See Desty's Crim. Law, § 88 b.

See "Act to punish Seduction," 1872, Appendix, p. 716, and “Act to punish Adultery," 1872, Appendix, p. 714.

267. Every person who takes away any female under the age of eighteen years from her father, mother, guardian, or other person having the legal charge of her person, without their consent, for the purpose of prostitution, is punishable by imprisonment in the State prison not exceeding five years, and a fine not exceeding one thousand dollars.

Abductions.-The child must be taken from some person having lawful charge of her-1 Russ. Cr. 9th ed. 940; and the taking must be without such person's consent-1 Car. & M. 254; 1 East P. C. 457; and want of consent will be presumed-see Rosc. Cr. Ev. 264. A person who takes a female under age from the custody of her father, must take the consequences, if she proves under age-2 Law R. C. C. 154; S. C.1 Am. Cr. R. 1; 10 Cox C. C. 402; 1 Car. & K. 456; 12 Cox C. C. 28; id. 231; and that he bona fide believed, or had reason to believe, she was over age is no defense-2 Cr. Cas. Res. 154; S. C. 1 Am. Cr. R. 1. It is enough if she be persuaded to leave her home, and the control of the parent continues down to the time of the taking-6 Cox C. C. 143; 4 id. 167; 8 id. 446; and though she quitted the house on a proposition emanating from herself, with a statement that she intended to leave, it is sufficient-2 Cox C. C. 279.

PEN. CODE.-11.