Opinion
November Term 1862.
T. F. Bayard for the prisoner. Such was not the phraseology in which the crime was defined in the books, for though it was perhaps, as equally terse, it meant, he thought, much more. That definition was "rape is the having carnal knowledge of a woman by force and against her will." 1 Russ. on Crimes 526, 556 m. 1 Hawk., 169. 2 Archb. on Crimes, 304, 306, in notes. It must appear that the offense was committed with force and with the utmost reluctance on the part of the prosecutrix. Whart. Am. Cr. Law 437, note a Regina v. Chase, 1 Eng. Rep. 544. Regina v. Stanton, 37 E. C. L. R., 414. Regina v. Hallett, 38 E. C. L. R., 318 Regina v. Sanders, 34 E. C. L. R., 383. Regina v. Williams, 34 E. C. L. R., 292. Regina v. Clark, 29 E. C. L. R., 542.
McColley, Deputy Attorney General. It was neither usual, nor was it necessary for the Court in charging to employ the precise and technical terms employed in the books, or by the Attorney General in framing a bill of indictment. The terms noted and objected to were not the only terms employed by the Court in describing the essential requisites of the offense in the charge to the jury, and it was so clear and fall as to the force required that no juror could have misunderstood the legal meaning and import of it on that point. But how would it be with the rigid and literal definition laid down on the other side in the case of an idiot, or one without sufficient mind and will to consent, or where chloroform had been administered to the prosecutrix? Could it be literally and strictly said to have been accomplished either by force, or against her will in such a case?
At a Court of Oyer and Terminer held at this term, Abel Riggs had been indicted, tried and convicted of the crime of rape, and thereupon the counsel for the prisoner submitted a motion in due form for a new trial on the ground that the Court in its charge to the jury in the case had misinstructed them as follows: "When the fact appears that connection has been had against the consent of the woman, the law implies force;" and further, "The two facts for your consideration are the fact of the deed of connection and the fact of consent or no."
declined to grant a new trial.