be proved by circumstantial evidence, and actual emission, if ever necessary, is no longer required to be shown.

§ 3093. Burden of proof.-Actual carnal knowledge must be shown, either by direct or indirect evidence. The burden is upon the state to prove penetration, but evidence which shows the least penetration is sufficient. The prosecution must also show that force, either actual or constructive was used,10 and that there was sufficient force to accomplish a penetration.11 If the state can show that the woman submitted through fear of violence or because of threats of

463, 17 S. W. 700; Hardtke v. State, Y. 234, 6 N. E. 384; Brauer v. State, 67 Wis. 552, 30 N. W. 723. 25 Wis. 413; Audley's Case, 3 How. St. Tr. 401.

violence, it is sufficient to prove that force was used,12 but it is held that her will must be so entirely overcome by the fear as to prevent resistance.13 The burden is upon the state to prove a boy under fourteen years of age physically capable of committing rape, as he is presumed to be incapable.1 The burden is upon the state in such a prosecution, as in all other prosecutions, to prove beyond a reasonable doubt the guilt of the defendant.15 The state must, in general, prove all the material allegations of the indictment, but it has been held that the state need not affirmatively show the prosecutrix to be of good repute; the burden is upon the defendant to show her bad repute.1 It is upon the state, however, to show where the indictment is for rape of a child under the statutory age of consent, that the child was under the statutory age;17 and in other cases the burden is upon the state to show want of consent.18

§ 3094. Presumptions. The presumption is generally that a boy under the age of fourteen years cannot commit the crime of rape, but this may be rebutted.19 A child under ten years of age is conclusively incapable of giving her consent,20 and it is generally the rule that a

12 State v. Ward, 73 Iowa 532, 35 N. W. 617; Turner v. People, 33 Mich. 363; Huston v. People, 121 Ill. 497, 13 N. E. 538; Bass v. State, 16 Tex. App. 62; Ransbottom v. State, 144 Ind. 250, 43 N. E. 218.

13 State v. Ruth, 21 Kans. 583; State v. Ward, 73 Iowa 532, 35 N. W. 617.

14 Gordon v. State, 93 Ga. 531, 21 S. E. 54, 44 Am. St. 189; Williams v. State, 14 Ohio 222, 45 Am. Dec. 536; Hiltabiddle v. State, 35 Ohio St. 52, 35 Am. R. 592.

15 Anderson v. State, 41 Wis. 430; Brown v. State, 76 Ga. 623; Austine v. People, 51 Ill. 236; People v. McWhorter, 93 Mich. 641, 53 N. W. 780.

16 Commonwealth v. Allen, 135 Pa. St. 483, 19 Atl. 957, 26 W'kly Notes Cas. 285.

State v. Houx, 109 Mo. 654, 19 S. W. 35, 32 Am. St. 686; Lawrence v. State, 35 Tex. Cr. App. 114, 32 S.

W. 530; but see, Nicholas v. State, 23 Tex. App. 317, 5 S. W. 239.

18 State v. Beabout, 100 Iowa 155, 69 N. W. 429; Pollard v. State, 2 Iowa 567; Strang v. People, 24 Mich. 1; People v. Page, 162 N. Y. 272, 56 N. E. 750; State v. Taylor, 57 S. Car. 483, 35 S. E. 729, 76 Am. St. 575; Jenkins v. State, 1 Tex. App. 346.

10 Heilman v. Commonwealth, 84 Ky. 457, 1 S. W. 731, 4 Am. St. 207; Williams v. State, 14 Ohio 222, 45 Am. R. 536; People v. Randolph, 2 Park Cr. Cas. 174; Wagoner v. State, 5 Lea (Tenn.) 352, 40 Am. R. 36. If over fourteen capacity, it is said, is presumed. State v. Handy, 4 Harr. (Del.) 566; see generally, 42 L. R. A. 589.

20 State v. Smith, 9 Houst. (Del.) 588, 33 Atl. 441; People v. McDonald, 9 Mich. 150; Commonwealth v. Sugland, 4 Gray (Mass.) 7; Fizell

girl between the ages of ten and twelve can only give consent when it is shown that she is capable of so doing,21 but it is held that such child's inconsistent statements and acts of indecency and immorality with others may be inquired into in a proper case upon her crossexamination.22

§ 3095. Age of prosecutrix.-A female child under the statutory age is conclusively presumed to be incapable of consenting to sexual intercourse, or, in other words, her consent is no defense, but it has been held that evidence is admissible to show that she understood the nature of the act,23 and that her bad reputation for chastity may be shown as affecting her credibility. The age of the prosecutrix may be proved by her own testimony,25 by that of her parents, or others who know,26 and, in a proper case, by family tradition and pedigree,27 or by records and documents.28 Opinions of medical men have also

v. State, 25 Wis. 364; O'Meara v. State, 17 Ohio St. 515; State v. Sullivan, 68 Vt. 540, 35 Atl. 479. Twelve years, Murphy v. State, 120 Ind. 115, 22 N. E. 106.

24

Dodge v. State, 100 Wis. 294, 75 N.
W. 954.

26 People v. Bernor, 115 Mich. 692, 74 N. W. 184; George v. State, 61 Neb. 669, 85 N. W. 840; Lawrence v.

21 State v. Houx, 109 Mo. 654, 19 State, 35 Tex. Cr. App. 114, 32 S. S. W. 35, 32 Am. St. 686. W. 530, 539; Reg. v. Nicholls, 10 Cox Cr. Cas. 476.

Bessette v. State, 101 Ind. 85; State v. Duffey, 128 Mo. 549, 31 S. W. 98. Not ordinarily, however, upon the question of consent, but rather as affecting her credibility, or the like.

Reg. v. Hayes, 2 Cox Cr. Cas. 226; Bain v. State, 61 Ala. 75. But not by the girl's own declarations to third persons. State v. Deputy, 3 Pen. (Del.) 19; see generally, Vol. I,

23 O'Meara v. State, 17 Ohio St. § 377. 515.

State v. Duffey, 128 Mo. 549, 31 S. W. 98; People v. Johnson, 106 Cal. 289, 39 Pac. 622; see, People v. Glover, 71 Mich. 303, 38 N. W. 874; People v. Abbott, 97 Mich. 484, 56 N. W. 862, 37 Am. St. 360.

Weed v. State, 55 Ala. 13; People v. Ratz, 115 Cal. 132, 46 Pac. 915; Commonwealth v. Phillips, 162 Mass. 504, 39 N. E. 109; People v. Bernor, 115 Mich. 692, 74 N. W. 184; State v. Bowser, 21 Mont. 133, 53 Pac. 179; Johnson v. State, 42 Tex. Cr. App. 298, 59 S. W. 398;

28 See, People v. Ratz, 115 Cal. 132, 46 Pac. 915 (family bible;) Commonwealth v. Hollis, 170 Mass. 433, 49 N. E. 632 (birth certificate); People v. Vann, 129 Cal. 118, 61 Pac. 776 (physician's record); Smith v. State, (Tex. Cr. App.) 73 S. W. 401 (same); Reg. v. Weaver, 12 Cox Cr. Cas. 527 (copy of register of births); Rex. v. Wedge, 5 Car. & P. 298; but see, People v. Mayne, 118 Cal. 516, 50 Pac. 654, 62 Am. St. 256, and compare, People v. Sheppard, 44 Hun (N. Y.) 565; People v. Flaherty, 162 N. Y. 532, 57 N. E.

been held admissible in some instances,2" and it has been held that the appearance of the girl may be taken into consideration.30 But in a recent case in which the age of prosecutrix was in issue, a schoolteacher testified that the prosecutrix had gone to school to him, and that he had placed her name and age on the register; that he usually obtained information as to the age of pupils by asking them, their older brothers or sisters, or their parents, but did not know how he had learned the age of prosecutrix, although he got it from some member of the family, and it was held that the register was not admissible to show the age of prosecutrix.31

§ 3096. Consent.-As already intimated, where the woman is over the statutory age, so that there is no rape if she consents to the act, it must appear that she did not consent. Proof of consent of the female, over the age named in the statute, is a defence to the action, no matter how reluctantly granted.32 Where consent in a qualified

34

sense is obtained through fear, and there is no actual resistance, the prosecution must show generally that the fear was so complete as to preclude all resistance.33 The age and relations of the parties may be considered and also whether the female was ignorant of the nature of the act. It has also been held that the statements of the prosecutrix concerning her consent to the intercourse and as to the force. used, are admissible.35 There can be no consent where the woman was asleep, unconscious or completely insensible from intoxication, and evidence of these facts is admissible upon the question of consent.38 Lack of consent is also proved where the state shows the woman to be an idiot or of such a weak mind as to prevent assent,37 and of course, girls under the statutory age cannot give consent.38 Where so called consent is obtained from the woman under the misrepresentation that the intercourse is a part of her medical treatment or surgical operation, such facts may be shown to prove that the intercourse was obtained without a valid consent.30 Proper evidence tending to show the want of chastity of prosecutrix may be introduced and considered in determining the question of consent. But this, and other evidence bearing upon the subject, will be considered in the sections relating to character and reputation and to circumstantial evidence.

40

she consented before penetration. Reg. v. Hallett, 9 Car. & P. 748, 38 E. C. L. 433; Whittaker v. State, 50 Wis. 518, 7 N. W. 431, 36 Am. R. 856. But in such cases there may often be a conviction of assault with intent to rape.

'People v. Flynn, 96 Mich. 276, 55 N. W. 834; State v. Ward, 73 Iowa 532, 35 N. W. 617; Don Moran v. People, 25 Mich. 356, 12 Am. R. 283; State v. Ruth, 21 Kans. 583; Ransbottom v. State, 144 Ind. 250, 43 N. E. 218; Felton v. State, 139 Ind. 531, 39 N. E. 228; Sharp v. State, 15 Tex. App. 171.

"Hawkins v. State, 136 Ind. 630, 36 N. E. 419; Ransbottom v. State, 144 Ind. 250, 43 N. E. 218; People v. Burwell, 106 Mich. 27, 63 N. W. 986; People v. Lenon, 79 Cal. 625, 2i Pac. 967.

55

36 Commonwealth v. Burke, 105 Mass. 376, 7 Am. R. 531; Osgood v. State, 64 Wis. 472, 25 N. W. 529; State v. Shields, 45 Conn. 256.

37 State v. Atherton, 50 Iowa 189, 32 Am. R. 134.

38 People v. Johnson, 106 Cal. 289, 39 Pac. 622; State v. Eberline, 47 Kans. 455, 27 Pac. 839; People v. Glover, 71 Mich. 303, 38 N. W. 874.

Eberhart v. State, 134 Ind. 651, 34 N. E. 637; Pomeroy v. State, 94 Ind. 96, 48 Am. R. 146; Reg. v. Flattery, 13 Cox Cr. Cas. 388; Don Moran v. People, 25 Mich. 356, 12 Am. R. 283; but compare, State v. Murphy, 6 Ala. 765, 41 Am. Dec. 79; Reg. v. Clarke, 6 Cox Cr. Cas. 412.

40 Carney v. State, 118 Ind. 525, 21 N. E. 48; McQuirk v. State, 84 Ala. 435, 4 So. 775, 5 Am. St. 381; State v. Fitzsimon, 18 R. I. 236,

People v. Flynn, 96 Mich. 276, 27 Atl. 446, 49 Am. St. 766; Wilson 55 N. W. 834.

v. State, 17 Tex. App. 525.