THE PEOPLE V. KNIGHT.

of Pontiac has the right to hold its annual township meetings in the city, the question still remains, and is now presented, whether the inhabitants had the right to hold any other meeting, or any election, within the city than such as is expressly reserved to them by the section above quoted. We think not. The general election is not a township meeting in any legal sense. The law, (1 Comp. Laws, p. 88, §2, subdiv. 4,) provides, by express words, that "The words 'annual meeting,' when applied to townships, shall be construed to mean the annual meeting required by law to be held in the month of April," and that, (§2, subdiv. 19,) "The words 'general election' shall be construed to mean the election required by law to be held in the month of November," and provision is made by statute for holding such annual meetings and general election.-1 Comp. Laws, §500, and seq.; Id., Ch. VI., p. 102. By the act to incorporate the city of Pontiac, certain territory, before that time a part of the township, was set off from said township, and declared to be a city. The effect of this act, except for the provision relative to annual meetings above quoted, would be to exclude the township from all jurisdiction over the territory thus cut off, and from holding any meetings within the city, limits; and it follows necessarily that the township has no rights of holding meetings or elections therein, except such as are expressly reserved to or conferred upon it by law; and whether the Legislature was competent to do this, is not a question submitted to us, and we do not propose to determine it until properly raised and presented.

We think, therefore, that the vote of the township of Pontiac was illegally cast, and that the defendant, Knight, is lawfully in possession of the office of Judge of Probate of his county.

Judgment for defendant.

The other Justices concurred.

OCTOBER TERM, 1865, AT DETROIT.

Valentine Crosswell v. The People.

Rape, what constitutes.

Carnal knowledge of the person of a female over ten years of age, unaccompanied with any circumstance of force or fraud, does not constitute the crime of rape, either at common law or under the statutes of this State.

Where, therefore, a man had criminal connection with a woman of mature years, of good size and strength, but who was shown by the testimony to be in a state of dementia - not idiotic, but approaching towards it; and it appeared that no fraud or force was used by him. Held, That such act did not constitute the crime of rape.

Error to Kalamazoo Circuit.

Heard July 7. Decided October 10.

The facts will be found sufficiently stated in the opinion.

N. A. Balch for plaintiff in error.

1. An assault with intent to commit rape always includes the design to use force to accomplish the object at all hazards on the part of the person making the assault, and of resistance of the most forcible kind on the part of the person assaulted. Rex v. Lloyd, 7 Car.

and Payne, 589; 2 Swan, 394.

In this case there is not the slightest evidence that any force was used or intended, or that any resistance was offered or intended. Where, then, is the assault, or where the intent? No force was needed, none intended.

The intent, in a case like this, constitutes the crime:

the assault was simply the means. Without these two essentials, the crime charged could not have been committed. 4 Leigh, 645.

There was no such offence at common law, as I have been able to discover. Our legislators have not created any, and if ever they do, they will then require that the pleader shall allege the character and condition of the female, the same as he is bound to in a case of a child under ten years of age. Comp. Laws, 1506 1507, 820, 5730; Barbour's Magistrate's Criminal Law, 69; 1 Russel on Crimes, 565; People v. Enoch, 13 Wend., 159:

2. The Court erred in not charging the jury that if they found actual coition, then the intent merged in the offence actually committed. The respondent insists that the information in this cause is at common law, and not an information under the statute. The statute provides that if any person shall assault any female with intent to commit the crime of rape; and rape is defined to be ravishing and carnally knowing a female of the age of ten years and over, by force, and against her will.

It will be seen by this statute that carnally knowing and abusing a female child, under the age of ten years, is not a rape. No ravishment is included in the offence. It simply consists in knowledge. Apply the same principle to a case like this, and no ravishment is included; it is simply carnal knowledge. It is not by force, nor against her will.

3. The charge of the Court under the seventh assignment of errors, the respondent contends, was wrong in this; that it instructs the jury that if the female was suffering under such a diseased state of mind as to have no intelligent will to oppose, then the crime charged was committed a proposition, we think, wholly untenable. The crime might be fornication, if a single woman; adul tery, if married; or it might be rape, if accomplished

CROSSWELL. THE PEOPLE.

with force. The law never presumes a man to intend to commit an enormous crime when his acts themselves may just as well be explained in the one of less aggravation. The only legitimate presumption is, that he intended to commit adultery; and this presumption exactly corresponds with the facts. The Court should, therefore, have instructed the jury, if they found the intent was simply to have sexual intercourse with the woman, and not to force her, then he must be acquitted. It by no means follows that the crime charged was committed, as the Court virtually instructed the jury, when all the facts and circumstances are more applicable to the commission of a different and less aggravated offence. Rex v. Jackson, Tr. Term R., 1822; Russel v. Ryan, 487; Regina v. Saunders, 8 C. & P., 266; Rex v. Williams, 8 Car. and Paine, 286; Rex v. Stanton, 1 Car and Kerwan, 415; Commonwealth v. Goodhue, 2 Met., 193.

When the offence, as charged in this case, was the intent, that criminal intent must be proved, whatever may have been the mental condition of the female; and the allegation of insanity was no excuse for not proving the intent and force. Rex v. Stanton, Car and Ker. Rep., 215.

A. Williams, Attorney General, for The People.

1. Mrs. Crittenden, at the time the offence was committed, was insane, and, therefore, incapable of consenting, In that regard, she was like a female child under the age of ten years. In this case, then, resistance by her, or violent aggression by him, in any degree whatsoever, is not necessarily an element of the offence. And this,

it cannot be said, is asking for the creation of a new principle, but only its application, in this State, as it has been elsewhere, to a class of cases worthy of protection. Stephen v. The State, 11 Geo., 225; 24 U. S. D. 510, §1, 83, §4; 1 Bishop Cr. L., §28, §342-3, and cases

CROSSWELL. THE PEOPLE.

cited; 2 Bishop Cr. L., §939, and cases cited; 1 Whort. Cr. L., §1141-3; The People v. McGee, 1 Denio R., 19; State v. Farmer, 4 Ired., 224; 4 Blackst. Comm., 212; Reg. v. Fletcher, 8 Cox. Cr. Cas., 131; 5 Jur. N. S., 179; Rex v. Regan, 2 Cox Cr. Cas., 115; State v. Cron, 10 West. L. J., 501; McNamaras Case, Oakley, 521; 2 Bennett & Heard's Mass. Digest, 542, note 1; 3 Greenleaf's Ev., §211-12; Dean's Med. Juris, 34-5.

COOLEY J.:

The defendant was informed against in the Circuit Court for the county of Kalamazoo for rape, alleged to have been committed upon one Mrs. Crittenden. The information was, in all respects, in the usual form.

On the trial, evidence was adduced that four persons, walking in the road together through or past a piece of woods, saw Mrs. Crittenden and the defendant in the road together a few rods off: Mrs. Crittenden, at the time, lying upon her back with her clothes up to her waist, and the defendant on his knees before her; that he did not have hold of her, or seem to be exercising any control, nor she to be making any resistance; that sexual intercouse took place between them, after which, on some slight noise being made, the defendant got up and ran off, while Mrs. Crittenden came out towards the witnesses smiling, and followed them to a house in the neighborhood where they were going to visit.

The prosecution then offered evidence to show that Mrs. Crittenden at the time was insane. The defendant objected to this as irrevelant, and also because, if insanity was a material fact, it should have been alleged in the information. The Court overruled the objection, and the defendant excepted.

The evidence given to establish insanity showed that Mrs. Crittenden was forty-eight or forty-nine years of age, in apparent good physical health, of good size and