Any person who was present when the marriage took place is a competent witness to prove the marriage; and it is enough that he is able to state that the marriage was celebrated according to the usual form, and he need not be able to state the words used. Fleming v. People, 27 N. Y. 329; Lord v. State, 17 Neb. 526.

CHAPTER LVIII.

§ 517. The Term Defined.

RAPE.

518. Offense must be "by Force, against her Will."

519. What must be Shown.

520. Reputation of the Prosecutrix for Chastity.

521. Complaint of the Outrage may be Shown.

522. Caution as to the Admission of Uncorroborated Testi

mony.

523. Utmost Resistance must be Shown.

524. Presumption as to Infants.

525. Evidence of Previous Offenses or Attempts.

526. Consent Secured by Fraud.

§ 517. The Term Defined.-"Rape is an act of sexual intercourse with a female not the wife of the perpetrator, committed against her will or without her consent. A person perpetrating such an act, or an act of sexual intercourse with a female not his wife,

"1. When the female is under the age of sixteen years; or,

"2. When through idiocy, imbecility or any unsoundness of mind, either temporary or permanent, she is incapable of giving consent; or,

"3. When her resistance is forcibly overcome; or,

"4. When her resistance is prevented by fear of immediate and great bodily harm, which she has reasonable cause to believe will be inflicted upon her; or,

"5. When her resistance is prevented by stupor or by weakness of mind produced by an intoxicating narcotic, or anæsthetic agent, administered by, or with the privity of, the defendant; or,

"6. When she is, at the time, unconscious of the nature of the act, and this is known to the defendant,-is punishable by imprisonment for not less than five nor more than twenty years." N. Y. Penal Code, § 278.

§ 518. Offense must be "by Force, against her Will."-The statutes contemplate that the offenses shall be "by force, against her will." McClellan's Dig. p. 355, § 36; 2 Bishop, Crim. L.

§ 1113; Charles v. State, 11 Ark. 389; State v. Murphy, 6 Ala. 765, 41 Am. Dec. 79. There must be a concurrence of these two ingredients. Cato v. State, 9 Fla. 163, 184. If force was used and yet the carnal knowledge was not against the will of the female, the crime of rape has not been committed. In some states it has been held that there must be resistance to the extent of the woman's ability. Thus in New York, in People v. Dohring, 59 N. Y. 374, 17 Am. Rep. 349, where a female was but fourteen years old, the decision is, that to constitute the crime of rape of a female over ten years of age, when it appears at the time of the alleged offense she was conscious, had the possession of her natural mental and physicial powers, was not overcome by numbers, or terrified by threats, or in such place and position that resistance would have been useless, it must be made to appear that she did resist to the extent of her ability at the time and under the circumstances. See also People v. Morrison, 1 Park. Crim. Rep. 625; People v. Quin, 50 Barb. 128. In other states it is said that there must be the utmost reluctance and the utmost resistance upon the part of the female, or her will must be overcome by fear of the defendant (Strang v. People, 24 Mich. 6) and that "the passive policy," or a half way case will not do, or resistance of such an equivocal character as to suggest actual consent, or not a very decided opposition. State v. Burgdorf, 53 Mo. 65; People v. Brown, 47 Cal. 447; People v. Hulse, 3 Hill, 309, 315, 317. If the jury entertain a reasonable doubt of such a reluctance, they should acquit (Strang v. People, supra) and where upon a trial the vital issue was whether the act was committed by force and against the will of the prosecutrix, the jury must be satisfied beyond a reasonable doubt that she did not yield her consent during any part of the act. Brown v. People, 36 Mich. 203.

In Com. v. McDonald, 110 Mass. 405, the trial judge charged that the act of the defendant must have been without the woman's consent, and there must have been sufficient force used to accomplish his purpose; that the jury must be satisfied that there was no consent during any part of the act, and that the degree of resistance was frequently an essential matter for them to consider in determining whether the alleged want of consent was honest and real; but 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 this charge was held by the supreme court to be appropriate and correct. Likewise in State v. Shields, 45 Conn. 256, the supreme court of Connecticut approved a charge that there was no rule of law that there could be no rape unless the woman manifested the utmost reluctance and made the utmost resistance, but that the jury must be satisfied that there was no consent during any part of the act, and that the degree of resistance was an essential matter for them to consider in determining whether there was an honest and real want of consent.

Mr. Bishop in his work on Criminal Law (vol. 2, § 1122) says that it is plain that in the ordinary case where a woman is awake, of mature years, of sound mind and not in fear, a failure to oppose the carnal act is consent, and though she objects verbally, if she makes no outcry and no resistance, she by her conduct consents, and the carnal act is not rape in the man; that the will of the woman must oppose the act, and that any intimation favoring it is fatal to the prosecution. He, however, disapproves the doctrine as to resistance affirmed in People v. Dohring, 59 N. Y. 374, 17 Am. Rep. 349, and says that the text of the law, and the better judicial doctrines require only that the case shall be one in which the woman did not consent; her resistance however, must not be a mere pretense, but in good faith. The text of the law referred to by him is the Statute of Westminster II. (13th ed. 1) chap. 34, A. D. 1285, which he gives in § 1111, as follows: "If a man from henceforth do ravish a woman, married, maid, or other, where she did not consent, neither before nor after, he shall have judgment of life and of member. And likewise where a man ravisheth a woman, married, lady, damsel, or other, with force, although she consent after, he shall have judgment as before is said (that is of life and member) if he be attainted at the king's suit, and there the king shall have the suit." Hollis v. State, 27 Fla. 387.

If consent in any degree at any time of the occasion be yielded by the female, the crime is not consummated; but the yielding to overpowering force may be submission and not consent. Reg. v. Fletcher, Bell, C. C. 63, 8 Cox, C. C. 131, 5 Jur. N. S. 179. The offense requires of her the utmost reluctance, and the utmost resistance on her part. People v. Morrison, 1 Park. Crim. Rep. 625; People v. Quin, 50 Barb. 128; People v. Dohr

ing, 59 N. Y. 374, 17 Am. Rep. 349. This rule is to be uniformly observed in cases of this character. But what is such resistance, has relation to the circumstances attending the transaction. If she was overpowered by force, and was unable, for want of strength, to actively resist any longer, or if such resistance was absolutely useless, the crime may have been committed. Reg. v. Hallet, 9 Car. & P.748; Don Moran v. People, 25 Mich. 356, 12 Am. Rep. 283; Whittaker v. State, 50 Wis. 518, 36 Am. Rep. 856.

To support the charge of the crime in question, assuming that the prosecutrix was conscious and had possession of her mental and physicial powers, it was necessary that she should resist to the extent of her ability, and be overcome by the physical force of the defendant, unless she was by threats terrified into a submission, or was in a place and so situated that resistance would have been useless. People v. Dohring, 59 N. Y. 374, 17 Am. Rep. 349; Oleson v. State, 11 Neb. 276, 38 Am. Rep. 366.

In such cases, although the woman never said "yes," nay more, although she constantly said "no," and kept up a decent show of resistance to the last, it may still be that she more than half consented to the ravishment. Her negative may have been so irresolute and undecided, and she may have made such feeble fight as was calculated to encourage, rather than repel the attack. And yet, a sense of shame, arising either from an apprehension of the consequences which may follow the illicit connection, or from the fact that the matter has already been known to others, may stimulate the woman to call that a rape, which was in truth a sin of a much less odious character. And when once she has given the transaction a name, she has no alternative but to confess herself false, as well as guilty, or to go into court and arraign the supposed offender. And then, as there was no express consent, she is enabled to swear to the force without any such great stretch of conscience as would be necessary where the whole story was a tissue of falsehood from beginning to end. Cases of this character do not call for any relaxation of the rules of evidence for the purpose of supporting the accusation. On the contrary, courts and juries cannot well be too cautious in scrutinizing the testimony of the complaining witness, and guarding themselves against the influence of those indignant feelings which are so naturally excited by the enormity of the alleged offense. Taylor v. State, 111 Ind. 279.