
    [Crim. No. 226.
    Department Two.
    July 20, 1897.]
    THE PEOPLE, Respondent, v. THOMAS GRIFFIN, Appellant.
    Criminal Law—Rape—Female of Unsound Mind—Resistance or Con•sbnt Immaterial.—Under the second subdivision of section 261 of the Penal Code, the act of sexual intercourse with a female not the wife of the perpetrator, where she is incapable, through lunacy, or any other unsoundness of mind, whether temporary or permanent, of giving legal consent, constitutes the crime of rape; and in this species of rape, neither force upon the part of the man, nor resistance upon the part of the woman forms an element of the crime, nor will apparent consent avail any more than in case of a child incapable by law of giving legal ccyisent
    Id.—Legal Consent—Impaired Intellect — Capacity Ordinarily Question for Jury.—Legal consent presupposes an intellige'hce r-i! hie of understanding the act, its nature, and probable conseqv , and this degree of intelligence may or may not exist with an ii and weakened intellect; and whether a woman of impaired inte’ ■ ’ ■ sessed mental capacity sufficient to give legal consent, mu i.; '"ir ;, exceptional eases, remain a question of fact for the jury.
    Id.—Defendant’s Knowledge of Mental Unsop'.-i>ni.-i Ii.ma"c: "al— Illegal Motive—Criminal Intent.—Xyhor/- the imnl. w.h whom the act of sexual intercourse was perpetrated v, ■ , in fact, so mentally unsound as to be incapable of giving legal consero, tin , > rsnn committing such act does so at his peril, and an i" "al motive being present, that illegal motive becomes a criminal into ./l r-n the''facts, at peril of which he acts, are shown to exist, and it . -' ' > e, for the crime that the defendant did not know, or have rea'. ,u ’o «.n '.ve, the incapacity for legal consent.
    Id.—Intercourse with Feeble-minded /Xtt ' efficiency of Evidence. Where the evidence shows that t jcl > f sexual intercourse complained of was with a feeble-minded , ,rl ■' ,_,nteen years of age, and that she was feeble-minded from early' Uk' «id/ and was an inmate of the state home for the feeblo-miud t it .he 'time of trial, and was then feeble-minded, the evidence is suüii -t to warrant the finding of the jury that the girl, by reason of inentyd unsoundness, was incapable of giving legal consent at the time of the !’ complained of.
    Id.— Mental Infirmity of Long Staniumj — Evidence—Condition at Time of Trial—Home for Feeiu f-minded.—Where the mental infirmity of the female sought fe> he shown by the people was one of. long standing, evidence of its past, present, and continued existence is admissible as hearing upon her state of mind at the time of the occurrence of the act complained of, anl where she was shown to have been feeble-minded from infancy, test! nony of the medical superintendent of the state home for the feeble-n inded that she was at the time of trial, six months after the alie, i .A .-e, an inmate of that institution, and was then feeble-minded, . ■’ ■ <„ ¡dole, as throwing light upon her condition at the time of the o'.
    
      Appeal from a judgment of the Superior Court of Contra Costa County and from an order denying a new trial. Jos. P. Jones, Judge.
    The facts are stated in the opinion of the court.
    
      W. F. Tinning, for Appellant.
    
      W, F. Fitzgerald, Attorney General, and Charles H. Jachson, Deputy Attorney General, for Respondent.
   Henshaw, J.

The defendant, charged with the crime . of -rape, was convicted of an attempt to commit rape. Xrom the judgment and from the order denying him a ' newxtria.1, he prosecutes these appeals.

-By \hé!,evidence of the people it appeared that the victim w4s-fá feeble-minded girl about eighteen years of age. ’ She ápd her brother were alono upon their ranch when defénd&pt, .and a companion by the name of Love, drove up. Toñecomplish their design they inveigled the brother awa^-from his home. He, returning, heard his sister cryib„g, ind entering her bedroom, discovered defendant in'[Kagra%te, ddietn.

/ At common law, where the elements of force upon the part of the assailant,.apd resistance upon the part.of the woman, were always regarded as essentials to the crime, much difficulty was experienced by the judges in bringing many cases, calling aloud for punishment, within the strict definition of the offense. The result, as may be conceived, was that the courts between their natural desires, upon the one hand, th punish the wicked, upon the other to maintain the -integrity of the law, were driven to extreme niceties ‘oLdistinction. The books are thus full of cases which are to-day of more interest for the acumen displayed, than ipr any light which they shed upon the matter. )

For, in this state, all these questions have been solved j and finally disposed of by the express language of our [statute. This, while still entitling the crime rape, embraces in its subdivisions some otienses not cognizable as such at common law, and others which only after much stress and perturbation upon the part of the judges were finally determined to come within the purview of that crime.

Of these offenses, grouped by our statute under the name of rape, the one with which we are here particularly concerned is that designated in subdivision 2 of section 261 of the Penal Code:

" Sec. 261. Rape is an act of sexual intercourse ac-' complished with a female not the wife of the perpetrator, under either of the following circumstances: . ... 2. Where she is incapable, through lunacy or any other..unsoundness-of mind, whether temporary or permanent, of giving legal consent.”

In this species of rape neither force upon the part of the man, nor resistance upon the part of the woman, forms an element of the crime. If, by reason of any mental weakness, she is incapable of legally consenting, resistance is not expected any more than it is in the case of one who has been drugged to unconsciousness, or robbed of judgment by intoxicants. Nor will an apparent consent in such a case avail any more than in the case of a child who may actually consent, but who, by law, is conclusively held incapable of legal consent.

Whether the woman possessed mental capacity sufficient to give legal consent must, saving in exceptional cases, remain a question of fact for the jury. It need but be said that legal consent presupposes an intelligence capable of understanding the act, its nature, and possible consequences. This degree of intelligence may exist with an impaired and weakened intellect, or it may not.

Defendant proposed the following instruction, which was given by the court with the elimination of the words embraced in parentheses: “ Mere weakness of mind on the part of a woman does not disbar or disable her from consenting to an act of sexual- intercourse, and one of less degree of intelligence or capacity than is necessary to make a contract may consent to carnal connection so that the act will not amount to rape in the man; but if a woman is, through lunacy or other unsoundness of mind, whether temporary or permanent (so idiotic) as to be (absolutely) incapable of giving legal consent, the connection with her is rape (if the man be, at the time of the connection, aware of her menial condition).”

Defendant’s special complaint is over the elimination of the condition “if the man be at the time aware of her mental condition.” It is here insisted that defendant’s evidence disclosed that he had no knowledge of her mental incapacity, and such indeed is his evidence. It is further contended that in the absence of such knowledge, or of reasonable means for acquiring such knowledge, he may not be convicted.

But with this we cannot agree. It is well and justly settled that one who has intercourse with a child under fourteen years of age is guilty of rape, even if she actually consents; and if the defendant bona fide believes, and has good grounds for belief, that she is past the age which establishes the crime. (People v. Ratz, 115 Cal. 132.) The same principle is uniformly applied in cases of abduction and of placing minors in houses of prostitution, where the fact, and not defendant’s knowledge or belief, fixes his responsibility. Not only does the due protection of society demand this, but he who engages in such enterprises is committing a moral wrong, for which there can be neither palliation nor excuse. The illegal motive is present, and that illegal motive becomes a criminal intent when the facts, at whose peril he acts, are shown to exist. The same principle is strictly applicable to the case at bar. Indeed, it may be said that there is even more reason for its invocation and use. It may happen that a female child under the age of fourteen may early mature and present the appearance of one much more advanced in years. But in such a case her undoer is not exculpated. It can scarcely happen that one seeking illicit intercourse with a woman of weakened intellect will not know that fact. If he indulges in niceties as to whether or not she be just so far mentally infirm as to save him from criminal consequences, and so pursues his purpose, he does so at his peril.

The evidence of the people was sufficient to warrant the finding of the jury that the girl, by reason of mental unsoundness, was incapable of giving legal consent. It was shown that she had been feeble-minded since early childhood. The medical superintendent for the state home for feeble-minded testified that she was (at the time of the trial) an inmate of his institution and was feeble-minded. Objection was made to this evidence as bearing upon her condition six months after the alleged offense, and as not throwing light upon her condition at the time of the offense. A similar point is made upon the court’s refusal to give an instruction embodying this objection. But, as the mental infirmity sought to be shown by the people was a long-standing one, evidence of its past, present, and continued existence was admissible as bearing upon her state of mind at the time of the occurrence.

The judgment and order appealed from are affirmed.

McFarland, J., and Temple, J., concurred.

Hearing in Bank denied.  