¶1It is settled by a chain of adjudication, too long and unbroken to be now shaken, that force is a necessary ingredient in the crime of rape. — Bishop on Grim. Law, § 411. The only relaxation of this rule is, that this force may be constructive. Under this relaxation, it has been held, that where the female was an idiot, or had been rendered insensible by the use of drugs or intoxicating drinks, and, in one case, where she was under the age of ten years, she was incapable of consenting, and the law implied force. — Rex v. Ryan, 2 Cox’s C. C., 115; Commonwealth v. Fields, 4 Leigh, 648; The State v. Shepard, 7 Conn. 54; Regina v. Camplin, 1. Car. & Kir. 746; Bishop’s Or. Law, § 343.
¶2But, when the cohabitation is, in fact, consentive, although that consent was procured by fraudulent person-ation of the female’s husband, there is neither actual nor constructive force, and such act does not amount to the crime of rape. — Rex. v. Jackson, 1 Russ. & Ryan C. C. 486; Regina v. Clarke, 6 Cox’s C. C. 412; Leading Criminal Cases, 282-3; 29 Eng. Law & Eq. 542.
¶3On principle, a defendant cannot be convicted of an attempt to commit the crime of rape, unless he actually attempted to cohabit with a female by force, and against her consent. There was, in this case, at least some evidence tending to show that the act of the prisoner was an attempt to accomplish Ms object by fraudulent person-ation of the husband; and it was the right of the prisoner to have it passed on by the jury. The charge numbered two in the series, ought to be given. — Bob v. The State, 29 Ala. 20.
¶4Tho other charges were rightly refused, because the first and third assume a higher grade of force than the law requires. The fourth loses sight of the plain fact, that in every actual rape, there is necessarily involved an attempt to commit the crime. Each, when committed by a slave on a white female, is punished with the same severity, and the doctrine of merger does not apply. — See Bob’s case, supra.
¶5The arraignment in this case was sufficiently certain; it substantially'-identifies this ease. An imperfect marginal *57note speaks of a nolle prosequi of tbe first count. We do not feel called on to respond to it.
¶6Tbe result of wbat we have said is, that tbe judgment of tbe circuit court is reversed, and the cause remanded.
¶7We depart from our usual course, for tbe purpose of inviting tbe attention of tbe legislature to this subject. Under our penal laws, one who obtains tbe goods of another under false and fraudulent pretenses, is held guilty in tbe same degree as if be bad feloniously stolen them. He who contaminates female purity under like fraudulent pretenses, goes unwhipped of justice.
¶8Let the prisoner remain in custody until discharged by due course of law.