SECTION 1 - COLQUITT
84 Ala. 435 (1887)
Defendant McQuirk, on trial under an indictment for rape, requested the following charges, each of which was refused by the court, and to such refusal, he excepted:
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 a 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 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 toward 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."
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The indictment * * * charges 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. * * *
* * *
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.
The mere fact that a woman is weak minded does not disable or disbar her from consenting to the act. It has been said that a woman with a less degree of intelligence than 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." * * *
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 insufficient to overcome the implication of consent.
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The judgment is reversed and remanded.
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