People v. Royal

By the Court : Against the objection of the defendant, the witness Smith was permitted to testify that in his opinion as a medical man the “ manipulation ” of the person of the prosecutrix on the same day while driving on the public road between Healdsburg and Santa Bosa, and before she accompanied defendant to his office, may have weakened her capacity to resist when the alleged rape was committed. The effect of such “ manipulation ” upon females, as explained by the witness, is ordinarily “ to excite their passions to such an extent as to influence their judgment and mental condition.” The expert adds: “If it excited no passion or gave no pleasure, it might affect the intellect or might not—might make some angry and might frighten others. Supposing it excites no passion at all and no pleasurable emotion, it might have the effect to bewilder her.”

The foregoing, and more of the same kind of testimony appearing in the record, was inadmissible. The common-law Judges recognized no such refinement, but referred all improper caresses and indecent liberties to the head of solicitation. The homely sense of our ancestors distinguished without difficulty between the force which constitutes rape and the blandishments of the seducer.

If such testimony was admissible at all, the jury were authorized to regard it as evidence which made less resistance sufficient than would in their opinion have been sufficient, but for the testimony in respect to the effect, of the alleged manipulation. That the evidence may have influenced the verdict cannot be disputed, and the rule requires of us to reverse a judgment when improper evidence has been admitted, unless it clearly appears that the evidence erroneously admitted could not have had any effect on the action of the jury.

That the testimony of the medical witness did influence the verdict is made to appear the more distinctly by the charge of [64]the Court. Portions of the charge suggest to the jury the theory—or at least possibility—that the will of the prosecutrix and her capacity of resistance might have been destroyed by some occult influence proceeding from defendant-; that her mind might have been “ bewildered ” or indeed “ paralyzed ” by some mysterious agency, entirely disconnected from any physical violence or threat of violence. There is no pretense that any drug or noxious substance was employed to render the prosecutrix unconscious, or to produce unsoundness of mind. The portions of the charge of the Court referred to, if they had application to any part of the evidence, could only have been understood by the jury as having application to such testimony as that given by the witness Smith; and as an instruction that the law demands less resistance on the part of the female, when erotic passion has been aroused by the solicitation of a suitor, accompanied by improper familiarities, at a period when the amatory passion is supposed to be peculiarly active, than when no such ardent appeal or manipulation has preceded the alleged illicit intercourse.