53 Cal. 62 | Cal. | 1878
Against the objection of the defendant, the witness Smith was permitted to testify that in his opinion as a medical man the “ manipulation ” of the person of the prosecutrix on the same day while driving on the public road between Healdsburg and Santa Bosa, and before she accompanied defendant to his office, may have weakened her capacity to resist when the alleged rape was committed. The effect of such “ manipulation ” upon females, as explained by the witness, is ordinarily “ to excite their passions to such an extent as to influence their judgment and mental condition.” The expert adds: “If it excited no passion or gave no pleasure, it might affect the intellect or might not—might make some angry and might frighten others. Supposing it excites no passion at all and no pleasurable emotion, it might have the effect to bewilder her.”
The foregoing, and more of the same kind of testimony appearing in the record, was inadmissible. The common-law Judges recognized no such refinement, but referred all improper caresses and indecent liberties to the head of solicitation. The homely sense of our ancestors distinguished without difficulty between the force which constitutes rape and the blandishments of the seducer.
If such testimony was admissible at all, the jury were authorized to regard it as evidence which made less resistance sufficient than would in their opinion have been sufficient, but for the testimony in respect to the effect, of the alleged manipulation. That the evidence may have influenced the verdict cannot be disputed, and the rule requires of us to reverse a judgment when improper evidence has been admitted, unless it clearly appears that the evidence erroneously admitted could not have had any effect on the action of the jury.
That the testimony of the medical witness did influence the verdict is made to appear the more distinctly by the charge of
For example, amongst other matters the Court charged: “ If from all the evidence you are satisfied that on or about the time alleged, the defendant, by manipulation, art, or device, or by other means, so bewildered or overpowered the mind and will of this girl as to render her at the time unconscious of the nature of the act of carnal intercourse, or powerless to resist it, and under those circumstances he had carnal intercourse with her, he is guilty of rape.”
Such language conveys the notion distinctly that seduction may be rape; that the employment of any art or device by which the moral nature of a female is corrupted, so that she is no longer able to resist the temptation to yield to sexual desire, will render sufficient less proof of resistance than would otherwise be necessary; that consent thus obtained is no consent. The proposition entirely overthrows the established law in respect to the offense with which the defendant is charged.
Judgment and order reversed, and cause remanded for a new trial.