By the term man in this definition is meant a male of the human species, of the age of fourteen years and upwards ; for au infant under fourteen years is presumed by law incapable of committing this offence ; Whart. Cr. L. 551; 1 Hale, Pl. Cr. 631 ; S C. & P. 738; McKinny v. State, 29 Fla. 565, 10 South. 732, 30 Am. St. Rep. 140. It cannot be shown that he was physically compel9 C. & P. 118. But this presumption been held by some authorities not to be con clusive, but capable of removal by proof ; Wagoner v. State, 5 Lea (Tenn.) 352, 40 Am. Rep. 36. But not only can an infant under fourteen years, if of sufficient mischievous discretion, but even a woman may be guilty as principal in the second degree; State v. Jones, 83 N. C. 605, 35 Am. Rep. 586. And such infant can be convicted of an indecent assault ; Odgers, C. L. 316. And the husband of a woman may be a principal in the second degree of a rape committed upon his wife ; as, where he held her while his servant com mitted the rape; 1 Hargr. St. Tr. 388. See People v. Chapman, 62 Mich. 280, 28 N. W. 896, 4 Am. St. Rep. 857; 2 Bish. N. Cr. L: § 1135.
Drunkenness is no excuse for rape ; nor can it excuse or mitigate an assault with intent to commit a rape ; State v. Carter, 98 Mo. 176, 11 S. W. 624.
The knowledge of the woman's person must be forcibly and against her will; and if her consent has not been voluntarily and freely given (when she has the power to consent), the offence will be complete, nor will any subsequent acquiescence on her part do away the guilt of the ravisher. A consent obtained from a woman by actual violence, by duress or threats of murder, or by the ad ministration of stupefying drugs, is not such a consent as will shield the offender or turn his crime into adultery or fornication ; and if the connection took place when she was in a state of insensibility from liquor, having been made drunk by the prisoner, though the liquor was given only for the purpose of ex citing her, it is a rape; 1 Den. Cr. Cas. 89; 1 C. & K. 746; 12 Cox, C. C. 311; or if the woman be asleep; 14 Cox, 114. Having carnal knowledge, of a woman by a fraud which induces her to suppose it is her hus band, does not amount to a rape ; 8 C. & P. 265, 286 ; 1 C. & K. 415. But there can be no doubt that the party is liable in such case to be indicted for an assault.
The injured party cannot condone the crime of rape by excusing or forgiving the guilty party ; Com. v. Slattery, 147 Mass. 423, 18 N. E. 399 ; or by marrying him ; State v. Bartlett, 127 Ia. 689, 104 N. W. 285.
If a man has intercourse with a woman by pretending that he is performing a medical operation upon her, it is rape; 2 Q. B. D.
410. There must be an actual resistance of the will on the part of the woman ; 19 L. J. M. C. 174 ; 1 Den. C. C. Don Moran v. People, 25 Mich. 356, 12 Am. Rep. 283 ; and it has been held that this must be shown be yond a reasonable doubt ; Huber v. State, 126 Ind. 185, 25 N. E. 904. If it appear that the intercourse was effected without her consent, the crime of rape is proved, although no posi tive resistance by her is shown; Mings v. Com., 85 Va. 638, 8 S. E. 474. • Some authori ties have held that the woman's resistance is not sufficient to render the crime rape, if finally she consent through fear, duress, or fraud, and that it must appear that she show ed the utmost reluctance and resistance; Whittaker v. State, 50 Wis. 518, 7 N. W. 431, 36 Am. Rep. 856 ; People v. Dohring, 59 N. Y. 374, 17 Am. Rep. 349. But this is not the general rule, the better opinion being that a consent obtained by fear of personal violence is no consent—and though a man puts no hand on a woman, yet if, by the array of physical force, he so overpowers her mind that she dares not resist, he is guilty of rape; 2 Bish. Cr. L. § 1125; Whittaker v. State, 50 Wis. 518, 7 N. W. 431, 36 Am. Rep. 860. The offence of rape is complete where prosecutrix is rendered unconscious in consequence of the assault and violence ; State v. Reid, 39 Minn. 277, 39 N. W. 796. It has been said that con sent during any part of the act will prevent its being rape; Brown v. People, 36 Mich. 203; Whittaker v. State, 50 Wis. 518, 7 N. W. 431, 36 Am. Rep. 860; but Bishop takes the view that after the offence has been com pleted by penetration, no subsequent consent is of any avail to relieve the man from the charge of rape.; 2 Bish. N. Cr. L. § 1122. A written statement by the prosecutrix on a trial for rape cannot be used to contradict her where she admits making it, but testifies that she did so under compulsion and that it is false ; State v. Baker, 136 Mo. 74, 37 S. W. 810.
The matrimonial consent of the wife can not be retracted ; and, therefore, her husband cannot be guilty of a rape on her, as his act is not unlawful. But he may be guilty if he procure or assist another to do the act ; State v. Haines, 51 La. Ann. 731, 25 South. 372, 44 L. R. A. 837.
As a child under ten years of age is in capable in law to give her consent, it fol lows that the offence may be committed on such a child whether she consent or not. See stet. 18 Eliz. c. 7, s. 4.