#### Harvey v. State.

Decided October 11, 1890.

Burglary — Intent to commit rape on a woman asleep.

If a man burglariously enters a house with intent to have connection with a woman while she is asleep, he is guilty of burglary.

APPEAL from Pulaski Circuit Court.

J. W. Martin, Judge.

Marshall & Coffman for appellant.

1. The evidence is sufficient to identify defendant, or to show an attempt to commit rape.

2. To constitute rape in this State force must be used. Fraud or strategy is not sufficient. Even if appellant’s intent was to effect his purpose while Mrs. Dean was asleep, he would not be guilty of the offense charged. See 13 Ark., 373 ; 11 Ark., 409; 86 N. C., 659; 73 Iowa, 255; 74 Mo., 24; 12 Tex. App., 196; 14 Gray, 415; 30 Ala., 54; 9 S. W. Rep., 609; 11 Tex. App., 116; 5 S. W., 511; 43 Tex., 583; 53 Ala., 453.

W. E. Atkinson, Attorney General, and T. D. Crawford for appellee.

The testimony was sufficient to induce the jury to believe that appellant’s intention was to commit rape. Compare 35 Ga., 263; 13 Ired., 246.

The case of Charles v. State, 11 Ark., 390, is notin point, but, if it were, the dictum of the court in that case is not sustained by any good authority. If he intended to effect his purpose while she was asleep, he would be guilty of rape. 3 Whart. & Stille, Med. Jur., sec. 60S; 1 Whart., Cr. Law,'sec. 561; 12 Cox, C. C., 311; 14 Cox, C. C.,

*426HUGHES, J.

The appellant was tried in the Pulaski circuit court upon an indictment containing two counts, in. the first of which'he is charged with burglary committed with the intent to steal, and in the second of which he is. charged with burglary committed with the intent to commit rape. He was convicted on the second count, filed a motions for a new trial, which was overruled, and appealed to this court.

The evidence in the case was circumstantial, and it is contended for appellant that it was neither sufficient to identify the person, who entered the house, as the appellant, nor to show the intent with which the entry was made. Upon the question of the identity of the appellant as the person who entered the house, we think there was sufficient evidence to support the verdict of the jury. Upon the question of the intention of the defendant in entering the house, the testimony shows that he entered it at about or after 12 o’clock at night, and that when discovered he retired through a window which was closed and the blinds to which were fastened,, when the woman who was assaulted went to bed in the early part of the night, and that a slat in the blinds had been cut, so as to admit a hand to unfasten them. The testimony further showed that Mrs. Eva Dean was sleeping in the front room of the house of Mrs. Foster on that night with her little boy who-was sick; and that Foster and his wife were in an adjoining room in bed; that about 12 o’clock Mrs. Dean, upon whom the assault is charged to have been made, was awakened from sleep by some one breathing hard right over or near her face and touching a private part of her person. She screamed, and saw a broad-shouldered man getting out of the window. There was a lamp burning in the adjoining room occupied by Foster, who had at intervals that night been handing in medicine to Mrs. Dean for her sick boy through a door, which stood ajar between the two rooms.

*427 “¿m^asie™. a *426The appellant was a stranger to Mrs. Dean, and could *427not have reasonably supposed that she would consent to submlt to his embraces. He evidently must have known that she was asleep at the time he stood over her with his face near hers, and touched a private part of her person. We think the evidence was sufficient to warrant the jury in believing that it was the intention of appellant in entering the room to have sexual intercourse with Eva Dean, without her consent and while she was asleep, and that the assault upon her person was made with that intent. As we understand the law, this constituted burglary with the intent to commit rape. “Rape is the carnal knowledge of a female, forcibly and against her will.” Mansf. Dig., sec. 1568. We have considered the cases of Sullivant v. The State, 8 Ark., 400, and Charles v. The State, 11 Ark., 390, and cannot assent to the doctrine of the latter cases that, if the prisoner designed to accomplish his purpose while the woman was asleep, he was not guilty of an attempt to commit rape.

We think the more reasonable and the correct'doctrine is laid down in Reg. v. Mayers, 12 Cox, Cr. Cases, 311, which is in substance that, ‘“if a man has or attempts to have connection with a woman while she is asleep, it is no defense that she did not resist, as she is incapable of resisting. The man can therefore be found guilty of a rape, or of an attempt to commit a rape.” In this case, Lush, J., said to the jury: “Therefore, what you must consider is this — did the prisoner come into the prosecutrix’s room with the intention of having connection with her while she was asleep? * . * * * If he did have connection with her while she was asleep he is guilty of rape; if he only attempted to do-so he is guilty of the attempt.”

As to the other questions raised in the case, we do not think they are material, and we therefore decline to discuss them.

The judgment is affirmed.