156. Same -Force as an ingredient.Force is necessary ingredient in rape, except where committed upon child under age of consent.-State v. Lung, 21 Nev. 209, 212, 37 Am. St. Rep. 505, 28 Pac. 235.

157. Same Purpose of section.-Under this section, any female under the age therein fixed is incapable of consenting to act of sexual intercourse, and one committing act with a girl within age specified is guilty of rape, notwithstanding he obtains her actual consent. The obvious purpose of this is the protection of society by protecting from violation the virtue of young and unsophisticated girls. People V. Verdegreen, 106 Cal. 211, 214, 46 Am. St. Rep. 234, 39 Pac. 607.

158. Same-Rape, what constitutes under subdivision.-Under this section, it is rape to have sexual intercourse with female under the age of sixteen, not the wife of the perpetrator.-People v. Howard, 143 Cal. 316, 317, 76 Pac. 1116.

159. Same Statute raising age is valid. -The act of 1897 amending this section, raising age of consent from fourteen to sixteen years, was properly approved, passed, and became law.-People v. Harlan, 133 Cal. 16, 24, 65 Pac. 9.

As to evidence, in general, see Parts III-V, this note.

162. Same-Corroboration not required.— There is no rule requiring that testimony of prosecutrix be corroborated, and corroborative evidence need not tend directly to connect defendant with offense, and though her testimony be contradictory and corroboration slight, appellate courts will not interfere, unless there is preponderance of evidence against verdict.-People V. Ah Lung, 2 Cal. App. 278, 282, 83 Pac. 296.

163. Same-Defendant is entitled to what latitude in cross-examination.-In this class of cases, defendant should be given fullest measure of every legal right in endeavor to maintain his innocence; and he should be allowed the widest latitude compatible with technical and restricted rules of evidence allowed defendant in his cross-examination of witnesses of people.-People v. Baldwin, 117 Cal. 244, 249, 49 Pac. 186.

164.

Same Defendant's right to crossexamine.—Where prosecutrix in charge of rape is near age of consent, but before commission of crime she had stated that she was seventeen, defendant is entitled to fully and thoroughly cross-examine her as to facts concerning her age.-People v. Howard, 143 Cal. 316, 322, 76 Pac. 1116.

165. Same-Showing of force and against will, unnecessary.—Upon the trial of a charge of rape on a girl under age of consent, it is not necessary to show that sexual intercourse was had forcibly and against will of prosecutrix.-People v. Harlan, 133 Cal. 16, 20, 65 Pac. 9.

166. Evidence admissible — Admissions of defendant-Pregnancy.-Proof that girl was pregnant before age of consent shows that crime of rape had been committed by some one, and authorizes reception of evidence as to admissions of defendant, made after his arrest and before his examination.-People v. Tarbox, 115 Cal. 57, 62, 46 Pac. 896.

As to admissibility of evidence generally, see Part III, this note.

167. Same Competency of mother as witness-Condition of clothing.-On trial of defendant charged with commission of rape on body of child six years of age, its mother, after testifying that within few minutes after commission of crime she had inspected the child's person and clothing, is a competent witness and the best evidence. The clothes themselves placed in evidence at the trial, even if they had been left unwashed, would not have been best evidence, or any evidence, standing alone, of their condition immediately after outrage. -People v. Figueroa, 134 Cal. 159, 161, 66 Pac. 202.

168. Same-Complaint of child.-In prosecution for rape committed upon minor under age of consent, testimony of girl's

mother as to what child told her on reaching home soon after occurrence is admissible. People v. Baldwin, 117 Cal. 244, 251, 49 Pac. 186.

169. Same-Condition of child and clothing. On trial for rape on young girl, defendant may introduce evidence as to whether child's condition might not have been produced by diseases, or other means than those testified to by her, and also as to how long evidences of such an act could be detected on clothing.-People v. Baldwin, 117 Cal. 244, 248, 49 Pac. 186. 170. Same Fact of child crying.-In prosecution for rape upon child six years of age, evidence that child complained to her mother soon after injury is admissible, as well as fact of her crying.-People v. Figueroa, 134 Cal. 159, 161, 66 Pac. 202. 171. Same Failure to make outery or complaint, and fact that she was induced by threats of imprisonment to make complaint against defendant, are admissible, as affecting her credibility.-People v. Fong Chung, 5 Cal. App. 586, 91 Pac. 105, 108.

172.

Same-Failure of prosecutrix to testify is not ground for excluding evidence of complaints made by her, where she is too young to testify.-People v. Bianchino, 5 Cal. App. 633, 91 Pac. 112, 113.

173. Same Ground of admitting complaint. On trial for rape upon child six years of age, her complaint, made shortly after the crime, is admissible, as tending to show her physical condition at time of utterance of complaint, just as groans, or other evidences of pain and suffering, are received in evidence to illustrate condition when that condition is subject of inquiry. General rule, that evidence of such complaint, in cases of this kind, is only admissible to corroborate testimony of prosecutrix, does not apply to. complaint made by such child, though she is incompetent to testify.-People v. Figueroa, 134 Cal. 159, 162, 66 Pac. 202.

174. Same Illustrative cases.-Evidence admissible in prosecution for rape.-People V. Fultz, 109 Cal. 258, 263, 41 Pac. 1040; People v. Vann, 129 Cal. 118, 120, 61 Pac. 776; People v. Harlan, 133 Cal. 16, 19-24, 65 Pac. 19; People v. Figueroa, 134 Cal. 159, 162, 163, 66 Pac. 202.

175. Same-Infection with venereal disease. When prosecutrix, child of five years, was examined by physician about one week after alleged offense, and shortly after such examination was found to be infected with venereal disease, complaints of child, shortly before and after examination are admissible.-People v. Bianchino, 5 Cal. App. 633, 91 Pac. 112, 113.

176. Same-Objection for want of sufficient age-Discretion of court.-On trial for rape, admission of testimony of prosecuting witness, a young girl, against objection for want of sufficient age, is discretionary, and such discretion will not be interfered with, where there is nothing to indicate any abuse thereof.-People v. Baldwin, 117 Cal. 244, 250, 49 Pac. 186.

177. Same-Other rapes and acts of lewdness. On trial for rape committed by defendant upon his own daughter, who was under twelve years of age, evidence of other rapes and acts of lewdness committed by him upon her is admissible to account for there having been no outery, and no pain suffered by the child, and also to account for absence of laceration and abnormal capacity of vagina at time offense was committed.-People v. Fultz, 109 Cal. 258, 262, 41 Pac. 1040.

178. Same-Prior and subsequent acts of lascivious conduct and sexual intercourse between defendant and prosecutrix are admissible to prove adulterous disposition of parties. People v. Morris, 3 Cal. App. 1, 84 Pac. 463, 464. See People v. Castro, 133 Cal. 11, 13, 65 Pac. 13.

179. Same-Testimony as to age.-In a prosecution for rape upon girl under age of consent, her testimony as to her age is admissible, though her knowledge of it

was derived from statements of her parents or from family reputation.-People v. Ratz, 115 Cal. 132, 133, 46 Pac. 915.

See pars. 43, 44, this note.

180. Same-Time of making complaint is material to determination of question of law affecting admissibility of evidence. Complaint must follow as closely upon occurrence as to be practically first opportunity available to tell one in whom she has confidence, and if made one month and a half after occurrence, should not be admitted.-People v. Gonzales, 6 Cal. App. 255, 91 Pac. 1013.

181. Evidence inadmissible-Belief as to age of victim.-One who is prosecuted for having had carnal intercourse with girl under age of consent will not be heard, against the evidence, to urge his belief that victim of his outrage had passed period which would make his act a crime.-People v. Ratz, 115 Cal. 132, 135, 46 Pac. 915.

As to inadmissibility of evidence in general, see Part IV, this note.

182. Same Illustrative case.-Evidence not admissible on trial for rape.-People v. Williams, 133 Cal. 165, 166, 65 Pac. 323. 183. Same Impeachment by proof of unchaste life.-In prosecution for rape upon girl under age of consent, her testimony that defendant, had forcibly accomplished his purpose, and that no one previously had ever had carnal intercourse with her, can not be impeached by testimony that she had previously led unchaste life.-People v. Benc, 130 Cal. 159, 162, 163, 62 Pac. 404.

184. Same- Rape before marriage, by husband.—On prosecution for rape, it is not competent for married woman to prove that crime of rape was committed by defendant, her husband, prior to their marriage, in having sexual intercourse with her before she was sixteen years of age, where it appears she freely consented to the marriage and to subsequent cohabitation.-People v. Curiale, 137 Cal. 534, 539, 59 L. R. A. 588, 70 Pac. 468.

To sustain

185. Evidence insufficient charge of rape where the testimony was to effect defendant had "intercourse" with the defendant, but it was not shown to have been "sexual intercourse."-People v. Howard, 143 Cal. 316, 318, 76 Pac. 1116.

As to sufficiency of evidence to sustain conviction, generally, see Part V, this note. 186. Evidence sufficient - Το sustain charge of rape, as showing consummation of crime.-People v. Lee, 119 Cal. 84, 86, 51 Pac. 22; People v. Morris, 3 Cal. App. 1, 84 Pac. 463, 464; People v. Darr, 3 Cal. App. 50, 84 Pac. 457, 458.

187. Same-What is sufficient.-Charge of rape upon girl under age of consent is sustained by evidence showing that accused had had sexual intercourse with prosecutrix, and by positive evidence that she was then under sixteen years of age, notwithstanding proof of her declaration

that she was over that age when crime was committed.-People v. Harlan, 133 Cal. 16, 19, 65 Pac. 9.

188. Indictment or information — Averment as to age.-Information for rape is sufficient as to age where its language clearly indicates that prosecutrix was under age of sixteen.-People v. Totman, 135 Cal. 133, 134, 67 Pac. 51.

As to indictment or information, generally, see Part II, this note.

189. Same-Facts stated with sufficient precision.-Indictment for rape charging that defendant unlawfully and feloniously had carnal knowledge of female child under ten years of age is sufficient where facts constituting offense are stated with sufficient precision.-People v. Mills, 17 Cal. 276, 278.

190. Same-Immaterial factors need not be alleged.-In prosecution for rape on person under age of consent, force and want of consent of the child are immaterial factors in the offense, and they need not be alleged. Facts not required to be proved need not be alleged.-People V. Rangod, 112 Cal. 669, 672, 44 Pac. 1071.

191. Same-Non-averment as to sex and physical ability. Information which charges rape upon person of female child under age of consent is sufficient, though it does not state that defendant was a male, or over the age of fourteen years, or, if under that age, that he possessed physical ability, as required by section 262 post, to commit the offense. This averment is not necessary. If defendant was incapable of committing the offense, such fact may be shown in defense; but averment that he was capable is implied in the charge that he wilfully and feloniously committed the act.-People v. Wessel, 98 Cal. 352, 353, 33 Pac. 216.

192. Same-Non-averment of force, violence, or want of consent.-Information for rape, in having sexual intercourse with a girl under age of sixteen, need not aver any force, violence, or want of consent.-People v. Bailey, 142 Cal. 434, 436, 76 Pac. 49. 193. Same Sufficient allegation that prosecutrix was not wife.-Indictment for rape which alleges that defendant, on day named, had sexual intercourse with female named, under sixteen years of age, and not wife of said defendant, sufficiently alleges that prosecutrix was not wife of defendant at time of act.-People v. Miller, 7 Cal. Unrep. 192, 78 Pac. 227.

194. Instruction—Acquiescence of infant. -See note, 80 Am. Dec. 365.

As to instructions generally, see Part VI, this note.

195. Same Assumption of fact.-In prosecution for rape, where no question is made at trial as to whether prosecutrix was under age of ten years, it is not error for court to assume that fact in his in

201. Same Harmless instructions in prosecution for rape on female under sixteen years of age.-People v. Benc, 130 Cal. 159, 166, 167, 62 Pac. 404.

202. Same-Instructions properly refused in prosecution for rape on female under age of consent.-People v. Totman, 135 Cal. 133, 136, 67 Pac. 51.

203. Same-Intercourse with other men -Error to refuse, when.-Previous want of chastity immaterial; but if a child is born eight months after the alleged offense, acts of intercourse with other men become material, and it is error to exclude evidence thereof.-People v. Currie, 14 Cal. App. 68, 111 Pac. 108.

204. Same-Proper instructions on trial for rape.-People v. Totman, 135 Cal. 133, 135, 67 Pac. 51.

205. Same-Rape of child under age of consent.-See note, 16 Am. St. Rep. 30.

IX. SAME-SUBDIVISION TWO-FEMALE INCAPABLE OF CONSENTING THROUGH LUNACY, ETC.

206. Construction of subdivision.-Under this subdivision, neither force upon part of a man, nor resistance upon part of a woman, forms element of the crime of rape. If, by reason of any mental weakness, she is incapable of legally consenting, resistance is not expected, any more than it is in a case of one who has been drugged to unconsciousness or robbed of judgment by intoxicants. Nor will apparent consent such case avail, any more than in case of child, who, by law, is conclusively held incapable of legal consent.-People V.

in

Griffin, 117 Cal. 583, 585, 59 Am. St. Rep. 216, 49 Pac. 711.

of

As to sexual intercourse with female incapable of giving consent by reason insanity, etc., constituting rape, see note, L. R. A. 1916F, 742.

207. Evidence-As to mental infirmity.In prosecution for rape upon person of a feeble-minded girl about eighteen years of age, where mental infirmity, sought to be shown by the people, has been of long standing, evidence of its past, present, and continued existence is admissible, as bearing upon her state of mind at time of occurrence. People v. Griffin, 117 Cal. 583, 587, 59 Am. St. Rep. 216, 49 Pac. 711.

As to evidence in prosecution for rape under the above subdivision, see note, L. R. A. 1916F, 749.

208. Same Competency of prosecutrix to testify in a prosecution under this subdivision; the mere fact that it was alleged in the indictment or information that she was incompetent, would not debar her from testifying.

She could be called by either side to the witness chair, and would be competent to testify, unless upon objection and after examination before the court it is determined that she is incompetent to give testimony by reason of lack of intellect.-People v. Peery, 26 Cal. App. 143, 146 Pac. 44.

211. Female an imbecile Incapable of expressing assent or dissent, the act of sexual intercourse with her constitutes the crime of rape.-Gore v. State, 119 Ga. 418, 100 Am. St. Rep. 182, 46 S. E. 671.

Sce, also, note, L. R. A. 1916F, 743. 212. Knowledge of mental condition Peril of defendant.-In prosecution for rape, where victim is a feeble-minded girl about eighteen years of age, it can scarcely happen that one seeking illicit intercourse with her will not know that fact. If he indulges in niceties as to whether or not she be just so far mentally infirm as to save him from criminal consequences, and so pursues his purpose, he does so at his peril.-People v. Griffin, 117 Cal. 583, 586, 59 Am. St. Rep. 216, 49 Pac. 711, doctrine followed in People v. Sheffield, 9 Cal. App. 130, 133, 98 Pac. 67.

As to ignorance of mental condition, see note, L. R. A. 1916F, 746.

213. Indictment or information - Form and sufficiency of.-An indictment charging accused wrongfully, and forcibly, ravished

and had sexual intercourse with prosecutrix, an imbecile of unsound mind, incapable of giving consent to such sexual intercourse, states facts constituting the crime of rape under the above subdivision. -See State v. Hann, 73 Minn. 140, 76 N. W. 33.

214. Same-Facts may be stated in different ways, in order to meet the proofs and sustain different theories of the case, without being open to the charge of duplicity.-State v. Austin, 109 Iowa 118, 80 N. W. 303; State v. Trusty, 122 Iowa 82, 97 N. W. 989; State v. Crouch, 130 Iowa 478, 107 N. W. 173; State v. Hann, 73 Minn. 140, 76 N. W. 33; Thompson v. State, 33 Tex. Cr. Rep. 472, 26 S. W. 987; Hubbard v. State, 66 Tex. Cr. Rep. 378, 147 S. W. 260. 215. Same Force not an element.-An indictment or information charging rape under the above subdivision, need not aver that the act was accomplished by force and against the will of the prosecutrix.-See State v. Enright, 90 Iowa 520, 58 N. W. 501; State v. Austin, 109 Iowa 118, 80 N. W. 303. 216. Instruction-Prosecutrix not called as a witness. It is not error for the court to refuse to charge the jury, at defendant's request, a juror having asked to have the girl examined, that it was not to be taken as evidence in the case that the defendant did not call the girl as a witness, defendant's counsel insisting that she could not testify because the district attorney had charged in the information that she was incompetent.-People v. Peery, 26 Cal. App. 134, 146 Pac. 44.

217. Legal consent-Presupposes what.— Legal consent, in this class of cases, presupposes an intelligence capable of understanding the act, its nature, and possible consequences. This degree of intelligence may exist with an impaired or weakened intellect, or it may not.-People v. Griffin, 117 Cal. 583, 585, 59 Am. St. Rep. 216, 49 Pac. 711.

218. Legal consent which would be sufficient in such a cause assumes a capacity in the female consenting to understand and appreciate the nature of the act committed, its moral character and the probable and natural consequences which may attend it. Impaired mentality may exist and yet the individual may be able to exercise reasonable judgment with respect to the particular matter presented for consideration.People v. Peery, 26 Cal. App. 143, 146 Pac. 44.

219. Weakmindedness merely-Does not prevent female from consenting to the act. -McQuirk v. State, 84 Ala. 435, 5 Am. St. Rep. 381.

220. Sexual connection with a woman of a weak mind, procured through a false marriage, does not constitute rape.-Bloodworth v. State, 65 Tenn. (6 Baxt.) 614, 32 Am. Rep. 546.

221. It is to be noted that the above decision was rendered under a statute re

quiring the element of force to constitute the crime of rape; under the above subdivision the element of force does not enter into the crime denounced. The Tennessee court hold that "fraud" is not equivalent to "force" used in the statute, whatever the moral turpitude attaching to the act, and however richly deserving severe punishment.-Bloodworth V. State, 65 Tenn. (6 Baxt.) 614, 32 Am. Rep. 546. See Wyatt v. State, 32 Tenn. (2 Swan) 396.

222. Same-Consent to intercourse from animal instincts, passion, or morbid deconstitute sire, the act does not rape.Gore v. State, 119 Ga. 418, 100 Am. St. Rep. 182, 46 S. E. 671.

223. Same-To extent of incapacity to consent, sexual intercourse with such a female constitutes rape.-State v. Atherton, 50 Iowa 189, 32 Am. Rep. 134, followed in State v. Trusty, 122 Iowa 82, 97 N. W. 989.

224. Whether intercourse is rape — Depends on capacity of female.-Whether incourse with non-resisting or consenting idiot or insane woman is rape depends upon her capacity to understand nature of the act or upon possession by her of will-power with which either to consent or to refuse. -State v. Lung, 21 Nev. 209, 212, 37 Am. St. Rep. 505, 28 Pac. 235.

As to woman non compos mentis, see note, 80 Am. Dec. 365, 366.

225.

Allegation of resistance-Necessity for. On charge of rape, where only assault alleged was that committed in accomplishment of the act to ravish, allegation that prosecutrix resisted the assault "that such resistance was overcome by the force and violence of said defendant," necessarily means that she resisted the whole thereof, to the very accomplishment of the charged, and that the act was accomplished by reason of fact that her resistance was overcome by force and violence.-People v. Jailles, 146 Cal. 301, 305, 79 Pac. 965.

act

of

226. Force Constructive.-In crime rape, force is necessary ingredient, but it may be constructive.-Lewis v. State, 30 Ala. 54, 68 Am. Dec. 113.

As to force as a necessary element, see pars. 228 et seq., this note.

227. Same-Putting hand under clothes in attempt to unbutton drawers.As to putting hand under bed-clothes, on hip of girl sixteen years old, and trying to unbutton her drawers, all against her will, being force, see Couch v. Commonwealth, 16 Ky. L. Rep. 477, 29 S. W. 29.

228. Essential element-Force is necessary, to constitute essential element of rape. -People v. Royal, 53 Cal. 62, 63.

As to constructive force, see pars. 26, 27, this note.

229. Same-Intent as vital element.-In prosecution for rape, intent to commit the offense is vital element in the case, and, though it is apparent from testimony that defendant desired to have sexual intercourse with her, and that he committed either an assault or battery upon her, of technical character, while engaging in his solicitations and blandishments, yet if at the very moment that his success was assured she, according to her statement, was exhausted, and her refusals and opposition to his desires had entirely ceased, and he voluntarily left her bed and retired to an adjoining room, where he passed the remainder of the night, this evidence would not be sufficient to show that force was used.-People v. Fleming, 94 Cal. 308, 311, 313, 29 Pac. 647.

230. Same - Resolution to use force.There is no intent to commit rape unless defendant was resolved to use all force necessary to carry out his designs.-People v. Fleming, 49 Cal. 308, 313, 29 Pac. 647.

na

231. Same-Resistance-Degree and ture of.-In order to convict of a charge of rape the prosecution must establish, not only an entire absence of mental consent or assent to the act on the part of the prosecutrix, but must also establish that she made the most vehement exercise of every means or faculty within her power to prevent or resist the penetration of her body, and that she persisted in such resistance until the consummation of the offense, in the absence of proof that the power of resistance was overcome by unconsciousness, threats, or exhaustion.-Brown V. State, 127 Wis. 193, 7 Ann. Cas. 258, 106 N. W. 536. See Beard v. State, 79 Ark. 293, 9 Ann. Cas. 409, 97 S. W. 667 (dis. op.); Reynolds v. State, 27 Neb. 90, 20 Am. St. Rep. 659, 42 N. W. 903; People v. Dohring, 59 N. Y. 374, 17 Am. Rep. 349; Sowers v. Territory, 6 Okla. 346, 50 Pac. 257.

But see note, 36 Am. Rep. 860.

As to want of consent, resistance.-See note, 80 Am. Dec. 364-369.

232. Utmost resistance is a question to be determined by the jury; and where there is any resistance shown, it is for the jury to say whether it was sufficient resistance. -See People v. Clemons, 37 Hun (N. Y.) 580, 3 N. Y. Cr. Rep. 565.

233. "Utmost resistance" is a relative term.-People v. Connor, 126 N. Y. 278, 27 N. E. 252.

234. Same-Same-Final consent to sexual intercourse, although such consent is reluctantly given, and is obtained through fear, duress, and fraud, or partly through fear, and partly by force, the offense is not rape. Whittaker v. State, 50 Wis. 518, 36 Am. Rep. 856, 7 N. W. 431. See Bohmann v. State, 98 Wis. 617, 74 N. W. 343.

225. Same-Same-Submission to overpowering force, constitutes rape.-People v. Clemons, 30 Hun (N. Y.) 580, 3 N. Y. Cr.