The theory which requires force in the commission of the crime of rape also requires resistance on the part of the female to the extent of her ability,154 unless some excuse for want of resistance is shown.155

146 State vs. Hair, 37 Minn., 35; State vs. Jones, 70 Iowa, 505.

147 People vs. Wright, 93 Cal., 569;

State vs. Evans, 1 Hayw., N. C 281 148 20 Am. & Eng. Ency, 249 (2nd Ed.).

149 Tully vs. People, 67 N. Y., 15. 150 4 Blackstone Com., 210.

151 People vs. Crowley, 102 N. Y., 234; Barker vs. State, 40 Fla., 178; Bean vs. People, 124 Ill., 576.

152 Lewis vs. State, 30 Ala., 54; Mills vs. State, 52 Ind., 187.

153 Don Moran vs. People, 25 Mich., 356; 23 Am. & Eng. Ency. Law, 858 (2nd Ed.).

The nature and extent of the resistance which ought reasonably to be expected must necessarily depend upon the peculiar circumstances attending the act and hence it is quite impracticable to lay down any rule applicable to all cases involving the necessity of showing a reasonable resistance.156 The strength and capacity of the female both mentally and physically may be shown, including her lack of development and want of knowledge of the nature of the act, as an excuse for her failure to resist.157

If the female was terrified by threats of her life or great bodily harm sufficient to over-power her mind and thus compel her to submit, this certainly is an excuse for the want of resistance.158

The act of sexual intercourse must be against the will of the female or without her consent;159 for if the carnal knowledge was with the voluntary consent of the woman, no matter how tardily given, or how much force had previously been employed, there is no offense.160 Although the accused may have used force in the first instance, yet if the female finally consents before he accomplishes his desire, there is no offense.161