CROSSWELL. THE PEOPLE. seeming strength; that she had been in the insane asylum at Kalamazoo the preceding year, but was, at this time, residing at home with her husband; that she worked some at home, but appeared to be uneasy, and said she ought to be doing something, but did not know what to do. The most pointed testimony was that of E. H. Van Dazen, the physician, who was in charge of the insane asylum while Mrs. Crittenden was there, who. testified that she was in a state of dementia not idiotic, but approaching towards it; that she had vague apprehensions of injury, and a pre-disposition to be with men a morbid, rather than an active desire, to have sexual intercourse; that that was one way in which her insanity manifested itself; that she was dismissed from the asylum not much improved, but under better control, and with more method in her conduct; that her general health was pretty good, and she was of good size, and apparently a strong woman. The witness did not think she had intelligent understanding at the time the crime was said to have been committed. conclusion of the case, woman was so suffering The Court below, at the charged the jury that if the from mental disease at the time, as to have no intelligent will to oppose to the act of the prisoner, and he knew of this her condition, then her failure to oppose him, or her seeming acquiescence, could not be urged against a conviction; and that if he made the attempt upon her person with the intent to have carnal intercourse, and she did not resist because she had no intelligent will to oppose, he was guilty of the offence charged. Under these instructions the jury returned a verdict of guilty. The exceptions present to us questions which we do not find distincly passed upon in any adjudged case. The main question, and the only one we deem it necessary to discuss, is, Whether the carnal knowledge of a woman non compos mentis, under the circumstances dis CROSSWELL V. THE PEOPLE. closed in the testimony above stated, can be punished as rape under the statutes of this State. Rape is defined to be "the carnal knowledge of a woman by force and against her will."-1 East. P. C., 434; 4 Bl. Com., 210. The statute providing for its punishment in this State-$5730 of Compiled Laws-is in the following words: "If any person shall ravish and carnally know any female of the age of ten years or more, by force and against her will, or shall unlawfully and carnally know and abuse any female child under the age of ten years, he shall be punished," etc. This statute does not change the nature of the offence as it stood at the common law, nor does it describe two distinct offences, but the carnal knowledge of the female child under the age of ten years is held to be rape, on the ground that, from immaturity and want of understanding, the child must be deemed incapable of assenting, and the act presumed to be the result of force. People v. McDonald, 9 Mich., 150; Commonwealth v. Sugland, 4 Gray, 7. And it is insisted in this case that an insane woman, or one not mentally competent to exercise an intelligent will, is in the same position, as respects this crime, as a child under ten years of age, and that carnal knowledge of her person would constitute the offence notwithstanding her acquiescence. If the case before us can be regarded as rape, it is apparent that it must fall within the first clause of the section quoted, since the other is confined, by its express terms, to carnal knowledge of female children under the age of ten years, and cannot be extended by analogy, to embrace other cases. But to warrant a conviction under the first clause of the section, the carnal knowledge must have been by force and against the will of the woman; and as there were facts before the jury, in this case, from which they might fairly infer that the woman, and not the man, was the soliciting party, and the charge of the CROSSWELL V. THE PEOPLE. judge must be construed in the light of the testimony, the real question to be determined is, whether that is by force and against the will, where the woman assented to and desired its commission, but without possessing, at the time, the mental capacity which would render her responsible for her own conduct? The general rule requires, not only that there should be force, but that the utmost reluctance and resistance, on the part of the should woman, appear. People v. Morrison, 1 Park. C. R., 625; Woodin v. People, Ibid., 464. The essence of the crime is said to be, not the fact of intercourse, but the injury and outrage to the modesty and feelings of the woman, by means of the carnal knowledge effected by force.- Pennsylvania v. Sullivan, Addis 143; 2 Bish. Cr. L., §944; 3 Greenl. Ev., $210. As these circumstances are wanting in the present case, it becomes important to ascertain whether any other circumstances can be regarded as legal equivalents. There are undoubtedly some cases where the law not only does not require actual force to be proved, but where force is presumed, and not suffered to be disproved. The case of carnal intercourse with a female child, under ten years of age, has already been alluded to, but the rule in that case is not an arbitrary one, but is based upon a well understood fact in nature, that the child, at that tender age, is without desire for such intercourse, and the presumption that it is against her will is therefore in accordance with the general fact. Nature, indeed, does not definitely fix the period at which the child might become capable of understanding the character of the act, and assenting to it: and the statute has therefore named the age of ten years as the period when the conclusive presumption of opposing will shall cease. The will, in this case, we apprehend, depends less upon mental capacity than upon physical considerations, and CROSSWELL. THE PEOPLE. the age named is not the age of consent, either at the common law or by the statute. It was, indeed, at one time supposed that if the female was over ten years of age, but under twelve, intercourse with her must necessarily be rape, because the capacity to consent was wanting; but the Courts did not so hold, and statutes were passed making the act a misdemeanor where the female was between the age of ten and the age of consent, but where, not being against her will, it did not fall within the definition of rape. 1 Hale P. C., 631; 4 Bl. Com. 212; 1 Russ. Cr., 693. In the case of Regina v. Campten, 1 Deer C. C., 89; Same case, 1 C. & K., 746, it appeared that the prisoner gave the woman liquor for the purpose of exciting her, but which had the effect to make her quite drunk; and while she was in a state of insensibility, he took advantage of it and violated her. The Court held the act to be rape. The prosecutrix showed by her words and conduct, up to the latest moment at which she had sense or power to express her will, that it was against her will that intercourse should take place. It was no answer to the charge, therefore, that she had no opposing will at the moment when intercourse actually took place, since the prisoner had actually mastered it by means of the stupefying drug, which was the same, as was well remarked by one of the judges, as if it had been overcome by a blow. In Rex v. Charles, 13 Shaw's J. P., 746, cited in 1 Bish. Cr. L., §343, note, and 2 Arch. Cr. Pl. & Pr., 167 (306,) the prisoner had carnal knowledge of the person of a woman laboring under delirium, and who was insensible to the act. The act was held to be rape; but the decision can hardly be regarded as establishing an exception to the general doctrine as to this crime. It the woman was insensible, some degree of physical force must actually have been employed by the prisoner; and CROSSWELL . THE PEOPLE. no more resistance is required by the law, in any case, than the condition of the woman will permit her to make. The facts, in the case last cited, made it open to the objection which appears to have been taken in The State v. Owen, 10 West. Law J., 501; Note to Whart. & St. Med. Juris., §463, where the defendant was charged with the crime of rape committed upon an insane woman. That case is sometimes referred to as holding that all carnal intercourse with an insane woman is rape; but the point involved was a very different one, and the decision sanctions no such doctrine. It is not a little remarkable that, while it is insisted by the prosecution in this case that all intercourse with a woman in this condition must be rape, because she has no capacity to consent, it was there was there urged by the defence, that no intercourse with her, even by force, could be rape, because she had no will to oppose. Rape, it is said, must be against the will; and how can an act be against the will of a person who has no will? This argument made it necessary for the Court to determine what is meant by the word will, as used by the law in this connection, and we quote from the decision so much as has a bearing upon this question: "Is it true," said the Court, "that an idiot or insane person has no will? What is the definition of these two words? Do they imply a loss of will or a mere unsoundness of mind? These words are thus defined by Webster: 'Idiot- a natural fool; a fool from birth; a human being in form, but destitute of reason, or the ordinary intellectual power of man. Insane unsound in mind or intellect; mad; deranged in mind, and one of the words used to define insanely, is foolishly.' 'Fool' is defined to be 'one who is destitute of reason or the common power of understanding; an idiot.'" In Chitty's Med. Juris. an idiot is defined to be 'a person who has been defective in intellectual powers from |