McQuirk v. State

• Decision Date: 17 July 1888
• Citation: 84 Ala. 435,4 So. 775
• Parties: MCQUIRK v. STATE.
• Court: Alabama Supreme Court

4 So. 775

84 Ala. 435

MCQUIRK v. STATE.

Supreme Court of Alabama

July 17, 1888

Appeal from circuit court, Pike county; JOHN P. HUBBARD, Judge.

Indictment for rape. Defendant requested the following instructions which were refused: (2) "If the jury have a reasonable doubt that the act was done with force, they must acquit the defendant, although the prosecutrix is a woman of weak mind." (3) "If the jury have reasonable doubt that the defendant did the act with or without the consent of the prosecutrix, although they may believe there was force used and that she was a woman of weak mind, they must acquit the defendant." (4) "If the jury believe, from the evidence, that the conduct of the prosecutrix was such towards the defendant, at the time of the alleged rape, as to create in the mind of the defendant the honest and reasonable belief that she had consented, or was willing for defendant to have connection with her, they must acquit the defendant."

T N. McClellan, Atty. Gen., for the State.

SOMERVILLE J.

The indictment, following the form authorized by statute, (Crim Code 1886, p. 275, form No. 69,) charges that the defendant "forcibly ravished" the prosecutrix. It is an essential constituent of the crime of rape that the act should be intended to be done with force, actual or constructive, and without the woman's consent. The forms of indictment in the Code, both for rape and for an assault with intent to ravish, each use the word "forcibly," as necessary in the description of these offenses, and at common law it was equally regarded as an essential element in the description of this high crime against law and morality. McNair v. State, 53 Ala. 453; Dawkins v. State, 58 Ala. 376; 1 Whart. Crim. Law, (8th Ed.) § 562; State v. Murphy, 6 Ala. 765; Lewis v. State, 30 Ala. 54; Waller v. State, 40 Ala. 325. It is true that the element of force need not be actual, but may be constructive or implied. If the woman is mentally unconscious from drink, or asleep, or from other cause is in a state of stupefaction, so that the act of the unlawful carnal knowledge on the part of the man was committed without her conscious and voluntary permission, the idea of force is necessarily involved in the wrongful act itself,-the fact of penetration. But even in cases of this kind the intent to use force, if necessary to accomplish the offense, is essential to criminality. 1 Whart. Crim. Law, (8th Ed.) § 550. An acquiescence obtained by duress, or fear of personal violence, will avail nothing; the law regarding such submission as no consent at all. If the mind of the woman is overpowered by a display of physical force, through threats, expressed or implied, or otherwise, or she ceases resistance through fear of great harm, the consummation of unlawful intercourse by the man would be rape. 1 Whart. Crim. Law, § 557; 2 Bish. Crim. Law, (7th Ed.) § 1125; 3 Greenl. Ev. (14th Ed.) § 211. The mere fact that a woman is weak-minded does not disable or debar her from consenting to the act. It has been said that a woman with a less degree of intelligence that is requisite to make a contract may consent to carnal connection, so that the act will not be rape in the man; but, "if she is so idiotic as to be absolutely incapable of consent, the connection with her is rape." 2 Bish. Crim. Law, § 1121. The principle, as expressed by another high authority, is that "carnal intercourse with a woman, incapable, from mental disease, (whether that disease be idiocy or mania), of giving consent, is rape." 1 Whart. Crim. Law. § 560. The evidence tends to show that the prosecutrix was weak-minded merely, not that she was idiotic or so non compos as to be incapable of giving consent to the act of carnal connection with the defendant. In view of this fact, and the principles above announced, we are of opinion that the circuit court erred in refusing the second and third charges requested by the defendant. The fourth charge requested by the defendant should also have been given. The consent given by the prosecutrix may have been implied as well as express, and the defendant would be justified in assuming the existence of such consent if the conduct of the prosecutrix towards him at the time of the occurrence was of such a nature as to create in his mind the honest and reasonable belief that she had consented by yielding her will freely to the commission of the act. Any resistance on the woman's part falling short of this measure would be...