(dissenting). — I should have no difficulty in concurring in the foregoing opinion, and in the conclusion reached, were it not for the second instruction, which is as follows: “ 2d. Mere submission will not necessarily involve consent; and though she may have submitted, without resistance, yet, if from the circumstances, her condition of mind, and the defendant’s admissions, you find she did not consent, the other ingredients being found, you should convict.” Now our statute defining rape provides, that, “ if any person ravish or carnally know any female of the age of ten years or more, by force and against her will,” he shall be punished, etc. The statute, it will be observed, requires that it shall be “by force and against her will” The instruction simply requires the jury to “ find that she did not consent.” There is, it seems to me, a manifest difference between non-consent and against the will. There are very many things done without my consent, which are not, nevertheless, against my will. A female may passively submit to inter *408course with a man, and it may truthfully be said that she did not consent, although it was not against her will. In other words, it seems to me the law requires that the jury must find that the act was against the will — a positive overriding of it, not simply a negative or non-resistant condition, expressed by the words, “that she did not consent.”
I think that, in the case of an idiot or lunatic female, the jury may take into consideration her condition of mind, the circumstances of the connection, the indications of force and resistance, etc., to determine the fact that the act was against her will; but othey must find that it was against her will, and not barely that she did not consent. The statute requires that the carnal knowledge to constitute rape must be by force and against her will, and it matters not what may be the condition of the body or mind of the female, nothing less than this will constitute rape; although much less and different evidence might satisfy the jury that the act was against the will of a female of weak mind, than if she was of a strong and vigorous mind. As this second instruction was a leading one, covering the whole case, and would justify or authorize the verdict of guilty as found by the jury, without a finding by them that the act was against the will of the prosecutrix, I think the defendant ought to have a new trial; but my associates think otherwise, and the order must, therefore, be made that the judgment appealed from shall stand affirmed.