delivered the opinion of the court.
This is an indictment for rape, alleged to have been committed on Eliza Ann Morris by one Percell, in which the present defendant is alleged to have been present, aiding and abetting and assisting said Percell in the perpetration of the act, and so guilty of the same offense. Bloodworth was convicted, and appeals in error to this court, where several errors are insisted on for reversal of the judgment of said court below.
First, it is insisted the court erred in sustaining a demurrer to the plea in abatement filed by defendant. Said plea sets up the fact that the grand jury was composed of thirteen men; that O. P. Braden and J. G. C. Mason were members of the grand jury who found the indictment at the February term, 1872, and that the said two grand jurors had been members of the grand jury at the previous June term of the same court. It is therefore insisted that they were incompetent jurors, and the indictment, as a consequence, not found by a legally constituted grand jury, and the proceedings under it void.
Sec. 8988 provides that no court shall appoint any person to serve as a juror more than once in each period of twelve months, either on the original panel or to fill a vacancy. The next section requires the court to discharge him, if any juror is appointed in *616violation of this provision, and appoint another free from like objection. Secs. 4909-10 provide that either party may challenge for cause any person presented as a petit juror who is incompetent to act as a-juror under the provision of the Code, the latter section specifying that having served as. a juror within twelve months is one of the causes for such challenge.
Construing the various sections together, they mean that it is the duty of the court to discharge a party who has served within twelve months, when the matter is brought to the attention of the court; and we add, that the court should take upon itself to enquire, and discharge this duty, before the grand jury is empaneled; but this is directory, only imposing a duty on the court, but not affecting the validity of the action of such jury, if the duty is neglected. This, so far as a grand jury is concerned, is the rule; but as to a petit jury, it is the right of either party to the case to get clear of the incompetent juror by' challenge, and if he fails from proper cause to exercise this right at the proper time, it would be a conclusive waiver of it, and the verdict of the jury be valid. There was no error in the case on this point.
The next question presented arises on the facts as to the consent of the party alleged to have been the subject of the offense, or rather her incapacity, by reason of imbecility or feebleness of mind, to give such consent, and the law as charged on this question by his Honor the Circuit Judge.
The proof shows that Percell had procured a man named Cook to personate a minister of the gospel for *617the purpose of performing a mock ceremony of marriage with Miss Morris. Percell and Cook, together with defendant, went to a place in the woods near the house of the father of Miss Morris, in the latter part of October, about two hours before sundown. That Percell went to the house, took the daughter, as her mother says, by the arm, and led her off to the woods, the mother following. They went to the place where Cook and defendant were in the woods, and there Cook, representing himself as a minister of the gospel from Clarksville, performed a pretended marriage ceremony, producing at the time a paper purporting to be a marriage license authorizing him to marry the parties. Percell and Eliza Ann Morris, the daughter, then started off to go to Percell’s house, about a mile, perhaps, from Morris’s. A brother of the girl seems to have gone to the same house that night, stayed all night, and slept in the same room with the parties. Percell slept with the girl that night. No force is shown; on the contrary, it is clear that the girl made no objection, and no doubt willingly, so far as she was capable, yielded to all that was done. It is equally clear, however, that the' whole affair was a premeditated and deliberately carried out piece of fraud on the part of Percell and Cook, for the purpose of having sexual intercourse with a feebleminded, if not imbecile, girl-conduct deserving ther utmost reprobation, and well worthy of the infliction of the severest penalty.
It is not so satisfactorily shown that the present defendant had any guilty knowledge of the purposes *618of the other two parties,, and the evidence might well generate a doubt as to whether he was not deceived into believing it to be a piece of sport on the part of the other two, or a dona fide marriage. However, the jury seem to have thought differently.
As to the capacity of the girl to consent to what was done, or to refuse or oppose it, owing to mental incapacity, the evidence is meager and not entirely satisfactory. The only evidence bearing on the question directly, is that of Hr. Menees, who says that he had been a practicing physician for seventeen years, and had visited the family of Morris at intervals during that period, and had waited on Eliza Ann when she was sick. He states that “she was a woman of very weak mind, and almost an idiot.” He gave it as his opinion that she had enough mind to consent to have intercourse with a man, but that he thought she did not have mind enough to know what that consent was, &c. This is, as we have said, very unsatisfactory evidence as to the capacity of the party, and from it we could hardly be justified in concluding that she was an idiot, wholly incapable of assenting to the act complained of; nor could a court or jury well he died on to say with precisely how much intelligent comprehension of the nature and consequence of an act a party under such circumstances must have acted in order to make out the element of this offense, given in the statute, of its being forcible and “against her will.”
Without further referring to the testimony, however, it suffices to say, that it clearly appears that this *619is a case of intercourse had with a very weakminded woman, where her yielding to the wish of the party was obtained by gross fraud. And further, the jury have found — as they were bound, under the charge of his Honor, in order to conviction — that the woman cl was of such weak mind as to be incapable of giving her consent; or, to use his language, “was an idiot .or lunatic, or of such feeble intellect as not to be capable of exercising a rational will, or of giving or withholding her consent.” And the question is, as to whether intercourse had with a woman without force, under such circumstances, is or may be a rape under our laws. In the language of Judge Caruthers, in the case of Wyatt v. The State, 2 Swan, 396, “We agree with the Attorney General, that the moral turpitude of the crime is as great when perpetrated by fraud and deception, as by force,” and that the act richly deserves to be severely punished; but the question is, not what it deserves, nor what our feelings and individual opinions would dictate, but “what sayeth the law.” It was settled in that case, that the language of our statute defining rape to be “the unlawful carnal knowledge of a woman forcibly and against her will,” necessarily included force as an essential element of the crime, and that to attain the result by fraudulently obtaining consent to the act, would not make out the offense. This case was decided upon a very full reference to the authorities, and we are. aware there are several most respectable authorities holding the opposite view, we feel bound to follow our own decisions. The statute, in fact, hardly *620admits, with any degree of fairness, a different construction; for, to say that a thing is done forcibly and against the will of a party, is not sustained by showing that no force was used, but that fraud and deceit had been used instead of force. In fact, the idea of attaining an end by the use of fraud necessarily excludes the idea of force, and is antagonistic to it. As to the want of competent capacity to give- or withhold consent, while this may and does exclude the idea of consent, affirmatively, yet it does not necessarily or fairly include or involve the idea of the language of the statute, that it was done against her will. The principle of the case of Wyatt v. The State, however, we deem conclusive of this aspect of the question; -for in case of fraud, where a woman yields to sexual intercourse with a man supposing him to be her husband, and is thus outraged in fact by fraud, she .gives no intelligent assent to what is done, and she as much withholds her assent to the act done, if the case was apprehended by her, as the imbecile, and even would revolt from it; yet in such a case, under the rule laid down, there would be no rape. We therefore feel constrained to hold, that the element of force being entirely excluded by the proof in the case, and the fact of some degree of assent shown, and certainly no dissent, that the act could not have been both forcible and against her will, and these elements are, by our statute, made essentials in this crime.
The Legislature, with their attention called to this case, can, and no doubt will, easily enact a law that *621will meet the precise case. We have no power to do it, and can only administer the law as we find it.
There are perhaps several other errors in admission of testimony, and, it may be, in the charge of his Honor, but we do not deem it necessary to notice them, as what we have said is conclusive of the case.
Reverse the case and remand for a new trial.