Rufus Wheeler Peckham

“ Taking all the evidence in the case, the jury might have inferred just that amount of nonconsent in this case. Not that they were bound to do so, but the question was one for them to decide. The mere nonconsent of a female to intercourse, where she is in possession of her natural, mental, and physical powers, if not overcome by numbers, or terrified by threats, or in such place and position that resistance would be useless, does not constitute the crime of rape on the part of the man who has connection with her under such circumstances. ”

“ With evidence such as has been outlined, the court, in charging the jury, said: 'The fact is that all the force that need be exercised, if there is no consent, is the force incident to the commission of the act. If there is nonconsent of the woman, the force, I say, incident to the commission of the crime, is all the force that is required to make out this element of the crime.' An exception was taken to the definition of the crime as given by the court. ”

“ Bishop, in his treatise on Criminal Law, says that the proposition as to the element of consent, deducible from the authorities, is that, although the crime is completed where the connection takes place without the consent of the female, yet, in the ordinary case where the woman is awake, of mature years, of sound mind, and not in fear, a failure to oppose the carnal act is consent; and, though she object verbally, if she make no outcry and no resistance, she, by her conduct, consents, and the act is not rape in the man. ”

“ As the verdict of the jury is conclusive upon the merits of the case, it becomes of the highest importance that upon an issue of this kind, maintained by evidence such as this record presents, the court should charge the jury with accuracy regarding the ingredients of the crime, and the facts necessary to be proved in order to show the guilt of the defendant. ”

“ Upon the trial the government gave evidence tending to show that on the night of December 7, 1894, James P. Hendrix, the husband of the prosecutrix, occupied a home with her and their four young children in the Indian Territory, about two miles southwest of a place called 'Foyle.' A man named Maxwell was also at the house that night. ”