77. Mayhem, at common law, is a hurt of any part of a man's body, whereby he is rendered less able, in fighting, either to defend himself or annoy his adversary.1 By statute it is extended so as to cover injuries merely disfiguring.

78. Mayhem is a felony in some jurisdictions, and a misdemeanor only in others.

At common law the injury must be such as renders the victim less able physically to fight, or to defend himself in a fight. If the injury merely disfigures him, without impairing his corporal abilities, it is not mayhem. Thus, it is mayhem at common law to put out a man's eye,' to cut off his hand or his foot or finger, or even to knock out a front tooth, as these are members which he may use in fighting; but it is otherwise where the ear or nose is cut off, or a back tooth knocked out, as these injuries merely disfigure him. Statutes, however, have been passed in most of the

11 East, P. C. 393; 4 Bl. Comm. 205.

2 Chick v. State, 7 Humph. (Tenn.) 161.

3 A count charging malicious biting of ear with intent to maim

states making it mayhem to maliciously disfigure a person; as, for instance, by cutting off an ear or part of an ear:* Under the statutes in some of the states a specific intent to disfigure is an essential element of the crime," while in others no specific intent is necessary." Mayhem is not justifiable or excusable because it was inflicted in a sudden fight. It is only excused where it is necessarily inflicted on an assailant to prevent grievous bodily harm or death. Some

cannot be supported as to the intent charged, as biting an ear is not mayhem. State v. Johnson, 58 Ohio St. 417, 51 N. E. 40, 65 Am. St. Rep. 769.

4 Foster v. People, 50 N. Y. 598; Godfrey v. People, 63 N. Y. 207; Riflemaker v. State, 25 Ohio St. 395; State v. Brown, 60 Mo. 141; Eskridge v. State, 25 Ala. 30; Com. v. Hawkins, 11 Bush (Ky.) 603. Throwing corrosive fluid into another's eyes. State v. Ma Foo, 110 Mo. 7, 19 S. W. 222, 33 Am. St. Rep. 414. Injuring private parts of woman, with intent to disfigure, is mayhem under statute. Kitchens v. State, 80 Ga. 810, 7 S. E. 209. Kicking person while his thumb is in another's mouth, causing it to be torn off. Bowers v. State, 24 Tex. App. 542, 7 S. W. 247, 5 Am. St. Rep. 901. Knocking out front tooth. High v. State, 26 Tex. App. 545, 10 S. W. 238, 8 Am. St. Rep. 488. Biting piece out of lip. State v. Cody, 18 Or. 506, 23 Pac. 891, 24 Pac. 895. Biting off ear. People v. Wright, 93 Cal. 564, 29 Pac. 240; State v. Green, 29 N. C. 39; State v. Abram, 10 Ala. 928. If the member is replaced and grows again, the injury is nevertheless mayhem. Slattery v. State, 41 Tex. 619.

5 State v. Jones, 70 Iowa, 505, 30 N. W. 750; State v. Cody, 18 Or. 506, 23 Pac. 891, 24 Pac. 895; Davis v. State, 22 Tex. App. 45, 2 S. W. 630; State v. Evans, 2 N. C. 281; State v. Hair, 37 Minn. 351, 34 N. W. 893; U. S. v. Gunther, 5 Dak. 234, 38 N. W. 79; People v. Wright, 93 Cal. 564, 29 Pac. 240; State v. Simmons, 3 Ala. 497; State v. Girkin, 23 N. C. 121. Premeditation necessary in New York. Godfrey v. People, 63 N. Y. 207. Intent need not exist any length of time. Godfrey v. People, 63 N. Y. 207; Molette v. State, 49 Ala. 18; Slattery v. State, 41 Tex. 619.

• Terrell v. State, 86 Tenn. 523, 8 S. W. 212; People v. Wright, 93 Cal. 564, 29 Pac. 240.

7 People v. Wright, 93 Cal. 564, 29 Pac. 240; State v. Evans, 2 N. C. 281; State v. Crawford, 13 N. C. 425.

CLARK CR.L.3D ED.-16

8

of the states have statutes punishing the infliction of wounds less than mayhem. It is said by Wharton that mayhem is a felony at common law, because anciently the offender had judgment for the loss of the same member as that the loss of which he occasioned to the sufferer. It is not a felony at common law in Massachusetts, nor in Georgia, except in case of castration.10

RAPE

79. Rape is the having unlawful carnal knowledge by a man, of a woman forcibly without her consent,11 as in the following cases:

(a) Where her resistance is overcome by actual force. (b) Where no actual force is used, but because of her condition, known to the man, she cannot consciously consent.

(c) Where she is below the age, at common law or under statutes, at which she can consent.

(d) Where her consent is extorted by fear of immediate bodily harm.

(e) Where (according to some authorities) her submission is induced by fraud without her intelligent consent; as, where induced by fraud she submits to connection believed to be a surgical operation, or to connection with a man fraudulently impersonating and believed to be her husband.

80. Rape is a felony at common law and under the statutes.

8 State v. Watson, 41 La. Ann. 598, 7 South. 125.

1 Whart. Cr. Law, § 583. And see 2 Bish. Cr. Law, § 1008.

10 Com. v. Newell, 7 Mass. 245; Adams v. Barrett, 5 Ga. 404. And see Canada v. Com., 22 Grat. (Va.) 899; State v. Thompson, 30 Mo. 470; State v. Brown, 60 Mo. 141.

11 2 Bishop, Cr. Law, § 1115 (2).

Rape is generally defined as the act of having unlawful carnal knowledge of a woman by force and against her will; 12 but, as we shall see, the definition does not get us very far in determining what is and what is not rape. Force on the part of the man, and want of consent on the part of the woman, are in a sense essential elements of the crime of rape, but the force may be supplied by what is not force at all, and the woman may, under some circumstances, actually consent to the intercourse and it yet be rape. Even where such is the case, however, there is force in law, and there is want of consent in law. As was said in an English case, "the word 'forcibly' does not necessarily mean 'violently,' but with that description of force which must be exercised in order to accomplish the act.” 18

Consent-Actual Force

When actual force is employed, it must be such as to overcome resistance. If a woman is capable in the eye of the law of consenting to sexual intercourse, carnal knowledge of her with her consent is not rape, provided, however, as we shall presently see, her consent is not extorted by threats and fear of immediate bodily harm.14 Under such circumstances, to constitute the crime of rape, it is said in some of the cases, she must resist to the uttermost.15

121 East, P. C. 434; 4 Bl. Comm. 210.

13 Per May, C. J., Reg. v. Dee, L. R. 14 Ir. at page 476. 14 Reg. v. Hallett, 9 Car. & P. 748.

15 Oleson v. State, 11 Neb. 276, 9 N. W. 38, 38 Am. Rep. 366; State v. Burgdorf, 53 Mo. 65; DON MORAN v. PEOPLE, 25 Mich. 356, 12 Am. Rep. 283, Mikell Illus. Cas. Criminal Law, 133; People v. Dohring, 59 N. Y. 374, 17 Am. Rep. 349; Conners v. State, 47 Wis. 523, 2 N. W. 1143; Strang v. People, 24 Mich. 1; Whittaker v. State, 50 Wis. 518, 7 N. W. 431, 36 Am. Rep. 856; People v. Morrison, 1 Parker, Cr. R. (N. Y.) 625; Whitney v. State, 35 Ind. 506; Anderson v. State, 104 Ind. 467, 4 N. E. 63, 5 N. E. 711; Taylor v. State, 50

Many cases lay down the rule without qualification.10 The importance of resistance, however, is to show two elements of the crime-carnal knowledge by force, and nonconsent. The test of resistance to the limit of physical capacity is difficult, if not impossible, to apply; and it seems that if the resistance, although short of the extreme limit of which the woman is physically capable, is of such a character as clearly to show nonconsent, and is persisted in to the end the requirement is satisfied." Where, from incapacity, there is no resistance, the mere force of penetration is sufficient. Opposition by mere words is not enough.18 If the woman voluntarily gives her consent to the act, it is immaterial

Ga. 79; People v. Brown, 47 Cal. 447; O'Boyle v. State, 100 Wis. 296, 75 N. W. 989. The circumstances may show that no force was used; as, for instance, where a girl of 15, weighing 150 pounds, claims that she was raped by a boy weighing 115 pounds, while she was sitting on the top step of a steep stairway. Brown v. Com., 82 Va. 653. Failure to make outcry not alone enough to show want of resistance. Eberhart v. State, 134 Ind. 651, 34 N. E. 637. And see other cases cited.

16 People v. Dohring, supra.

17 "The importance of resistance is simply to show two elements of the crime carnal knowledge by force and nonconsent.

* The jury must be fully satisfied of their existence in every case by the resistance of the complainant, if she had the use of her faculties and physical powers at the time, and was not prevented by terror or the use of brutal force. So far resistance by the complainant is important and necessary; but to make the crime hinge on the uttermost exertion the woman was physically capable of making would be a reproach to the law as well as to common sense. The fallacy lies in the assumption that the deficiency in such cases necessarily shows consent. If the failure to make extreme resistance was intentional, in order that the assailant might accomplish his purpose, it would show consent; but without such intent it shows nothing important whatever. The whole question State v. Sudduth, 52

*

is one of fact." State v. Shields, 45 Conn. 256; S. C. 488, 30 S. E. 408.

18 Huber v. State, 126 Ind. 185, 25 N. E. 904.