of age was conclusively presumed to be physically incapable of committing rape, and no evidence could be introduced to show capacity in fact.578 In this country the same rule has been held by some of the courts.579 Others have repudiated it, however, on the ground that in this country boys do, as a matter of fact, sometimes reach the age of puberty before they are fourteen, and that, as the reason for the rule does not exist, the rule is not applicable. Most of these courts have held that there is a presumption of incapacity, but that the presumption may be rebutted by affirmatively showing capacity in fact.580 In

578 1 Hale, P. C. 630; Steph. Dig. Crim. Law, art. 254; Rex v. Eldershaw, 3 Car. & P. 396; Rex v. Groombridge, 7 Car. & P. 583; Reg. v. Philips, 8 Car. & P. 736.

579 State v. Sam, 1 Winst. (N. C.) 300; State v. Pugh, 7 Jones (N. C.) 61; Stephen v. State, 11 Ga. 225; Williams v. State, 20 Fla. 777.

580 Williams v. State, 14 Ohio, 222, 45 Am. Dec. 536; Hiltabiddle v. State, 35 Ohio St. 52, 35 Am. Rep. 592; Wagoner v. State, 5 Lea (Tenn.) 352, 40 Am. Rep. 36; People v. Randolph, 2 Park Cr. R. (N. Y.) 174; People v. Croucher, 2 Wheeler, C. C. (N. Y.) 42; Heilman v. Com., 84 Ky. 457, 4 Am. St. Rep. 207; State v. Handy, 4 Harr. (Del.) 566.

The fact that a statute makes the crime com

Louisiana the court has gone further, and has held that there is not even a presumption of incapacity.5

581

(b) Impotency.-An impotent man, if incapable of copulation, cannot commit rape, but if he is capable of penetration, and merely incapable of emission or procreation, he may commit the offense, for, as we have seen, penetration, without emission, is sufficient. 582

plete on proof of penetration only, without proof of emission, does not change this rule. Hiltabiddle v. State, supra.

581 State v. Jones, 39 La. Ann. 935.

582 Nugent v. State, 18 Ala. 521. And see Hiltabiddle v. State, 35 Ohio St. 52, 35 Am. Rep. 592.