Opinion by
Defendant was convicted of common law rape and was sentenced. In this appeal it is argued that under the evidence he may hаve been guilty of fornication only and accordingly there is reversible error in the failure of the trial judge in his charge to clearly differentiate fornication from rape and to instruct the jury that under the circumstances the defendant could be convicted of the misdemeanor alone. We find no merit in the contention.
Following a casual acquaintance of but a few days Katherine Neely, then 19, made a tentative date with the defendant for Thursday, October 27, 1949. In the evening of that day at the request of the defendant she left her girl friends at a bowling alley in Sewiсkley where they had been bowling and went with him to an automobile parked on a nearby street. He had *334 represented to her that his comрanion Edward Stone and his girl friend were in the car and it was upon the understanding that this was a ‘double date’ that she agreed to go with him. When she observеd Stone alone in the ear she attempted to withdraw and return to the bowling alley whereupon the defendant shoved her into the car. Stone drove the car to Ambridge where he, in good faith or otherwise, tried to get another girl, but without success. On the way back to Sewickley, at defendant’s suggestion, Stone drove into a secluded side road in Edgeworth Park and came to a stop. There according to the girl’s testimony which was accepted by the jury, the defendant assaulted her, choked her to stop her screaming and forcibly and against her will had intercourse with her on the rear seat of the automobile. Stone who was a witness to the intercourse denied that the girl made any outcry but he did admit thаt she was sobbing after the occurrence and for that reason he suggested that they take her home. On the way, according to the girl’s recital of the facts the defendant kept shaking her and among other things said: “You just watch your step and you will learn after this not to break a datе with me ... You are going to be pretty sorry if you tell anything to anybody or give them the slightest inkling. I can fix your reputation so any boy in Sewickley or anywhere won’t have anything to do with you. You will be awfully sorry”. She was discharged. from the automobile near the bowling alley and because she was in no condition to walk through the main part of Sewickley to her home she went to the nearby rooms of one of her girl friends with whom she had been bowling early in the evening. The other members of her bowling team were there also. She was hysterical and while she did not tell them what had. occurred, from- hеr disheveled appearance also,, they sensed that she had been assaulted and advised her to go to the *335 police. She later was taken to the home of her brother-in-law where she was staying. On Friday, the following day, she reported the circumstances of the rape to him and he immediately notified the police. On Saturday she went to her parents, who were living some distance from Sewickley and informеd them that she had been assaulted and raped by the defendant.
At the oral argument appellant’s counsel attempted to make muсh of the fact that when he called Katherine Neely the day after the occurrence she agreed to see him again at her hоme the following Wednesday evening at 7:30. The circumstances indicate her reasons for her apparent willingness to make this second date with him. She knew him only by the name of John Morrison, and the address which he gave her was fictitious. She had determined to prosecute him for the offense before he called her by telephone on Friday and the ruse of acceding to his request was the means of accomplishing his аrrest. When he appeared at her house the following Wednesday she remained in hiding while a police officer who had been notified and was in waiting took him into custody.
The defendant testified that the girl offered no resistance to his advances and that he implied consent frоm her actual cooperation in the consummation of his desires. All of the credible testimony is to the contrary. Under the circumstancеs the following excerpt from the charge of the court, following a painstaking review of all of the testimony is an entirely adequate instruсtion of the law of the case: “Rape is the unlawful carnal knowledge of a woman, that is, unlawful sexual intercourse with a woman, by the use of force, against her will and without her consent. If no force was used or consent was given the crime is not rape, hut is fornication only. Now in determining whether force was used, and if so, was it sufficient to- constitute this offense, it must be such force as might be described *336 as physical violence, not what might be termed improper advances. And when you consider the question of whether there was consent you must carefully distinguish between consent and submission. Force sufficient to induce a woman to submit without additional resistance is not consent because consent is a free act of the will, a voluntary thing. A woman might quit resisting because she has been beaten into submission оr tortured into submission, but she could not be said to have consented. However, if she does give real consent at any time the crime is not raрe.” (Emphasis added).
Fornication is included in the single charge of rape and on an acquittal of rape a defendant may be convicted of the constituent offense of fornication.
Commonwealth v. Parker,
Judgment of sentence affirmed, and it is ordered that the defendant appear in the court below at such time as he may be there called, and that he be by that court committed until he has comрlied with thé sentence, or any part of it, which had not been performed at the time the appeal was made a supersedeas.
Gunther, J., dissents.