Royal

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…