4

necessary to prove active resistance on the part of the female. Absence of consent will be presumed whenever sexual intercourse is procured by fraud, or the woman is physically or mentally incapable of consenting, because she has been drugged, is non compos mentis, or is under the statutory age of consent. If the woman having legal capacity to consent, shall consent to the consummation of the intercourse, a verdict of guilty cannot be sustained, no matter how reluctant or tardy her consent may have been, or how much force had been used. The question whether she consented is for the jury. As consent, that is the concurrence of her will with the will of the accused, is purely a mental condition, its existence, when put in issue, must be inferred from the facts in the case. From the secret nature of the crime, evidence of circumstances from which intent must be inferred should be carefully scrutinized." Among the facts which are relevant to show the absence or presence of consent are the resistance which was offered by the woman, her physical condition and strength, and that of the accused,' and the means employed by the latter to inspire her with fear.

A child under the age of ten years was, at common law, conclusively presumed incapable of consenting to sexual intercourse,

* 2 Bish. Crim. Law, § 1115; 1 Hale P. C. 629; Hubert v. State, 74 Neb. 220, 104 N. W. 276, 106 N. W. 774; Harlan v. People, 32 Colo. 397, 76 Pac. 792; State v. Whimpey, 140 Iowa 199, 118 N. W. 281; State v. Peyton (Ark., 1910), 125 S. W. 416; Elliott Evidence, § 3094.

"Mills v. United States, 164 U. S. 644, 41 L. ed. 584, 17 Sup. Ct. 210; Conners v. State, 47 Wis. 523, 2 N. W. 1143; Pollard v. State, 2 Iowa 567; Whittaker v. State, 50 Wis. 518, 7 N. W. 431, 36 Am. 856n; Reynolds v. State, 27 Neb. 90, 92, 42 N. W. 903, 20 Am. St. 659; Hollis v. State, 27 Fla. 387, 391-394, 9 So. 67.

6 Anderson v. State, 41 Wis. 430; Brown v. State, 76 Ga. 623, 626. "The importance of resistance is simply to show two elements in the crime; carnal knowledge by force by one of the

8

parties, and non-consent thereto by the other." State v. Shields, 45 Conn. 256.

'Brown v. Commonwealth, 82 Va. 653, 656; State v. Cunningham, 100 Mo. 382, 391, 12 S. W. 376.

9 Commonwealth V. Sugland, 4 Gray (Mass.) 7; Commonwealth v. Roosnell, 143 Mass. 32, 37, 39, 8 N. E. 747; State v. Sullivan, 68 Vt. 540, 35 Atl. 479; Proper v. State, 85 Wis. 615, 631, 632, 55 N. W. 1035; Farrell v. State, 54 N. J. L. 416, 419, 24 Atl. 723; State v. Miller, 42 La. Ann. 1186, 8 So. 309, 21 Am. St. 418; People v. Crosswell, 13 Mich. 427, 87 Am. Dec. 774; People v. McDonald, 9 Mich. 150; Moore v. State, 17 Ohio St. 521, 525; Coates v. State, 50 Ark. 330, 335, 356, 7 S. W. 304. The mother of the child may testify to her age. Mc

though, if she were so developed mentally and physically as to understand the nature and consequences of the act, the presumption was sometimes regarded as rebuttable. The statutory age of consent now varies in the several states." If the female is under the statutory age, the presumption of non-consent is conclusive. and evidence to show that force was or was not used, or generally that she did or did not consent, is alike inadmissible.10 If the feinale is over the age of consent, proof of mere absence of consent is enough, and evidence of facts constituting an active and positive dissent is not required. The non-consent may be inferred by the jury from proof that the female was mentally weak, at least where such a degree of imbecility is shown that it is evident that she did not realize the meaning, or the nature and consequences of the sexual act.11

$408. Rape by infants.-In England at common law a boy, under the age of fourteen, was conclusively presumed unable to

Math v. State, 55 Ga. 303, 307. See
Elliott Evidence, §§ 3095, 3096. Re-
sistance of the female, see Elliott
Evidence, 3097.

9

10

3 Crim. L. Mag. 347.

People v. Miller, 96 Mich. 119, 55 N. W. 675; State v. Wray, 109 Mo. 594, 599, 19 S. W. 86; Reg. v. Beale, 10 Cox C. C. 157; White v. Commonwealth, 96 Ky. 180, 28 S. W. 340, 16 Ky. L. 421; State v. Eberline, 47 Kan. 155, 157, 27 Pac. 839; State v. Storkey, 63 N. Car. 7; Murphy v. State, 120 Ind. 115, 116, 22 N. E. 106; State v. Dancy, 83 N. Car. 608, 609; Williams v. State, 47 Miss. 609, 613; State v. Wright, 25 Neb. 38, 41, 40 N. W. 596; Wood v. State, 46 Neb. 58, 64 N. W. 355; McMath v. State, 55 Ga. 303; Farrell v. State, 54 N. J. L. 416, 419, 24 Atl. 723; Comer v. State (Tex. Cr.), 20 S. W. 547; State v. Lacey, III Mo. 513, 516, 20 S. W. 238; Givens v. Commonwealth, 29 Gratt. (Va.) 830, 832; Davis v. State, 31 Neb. 247, 47 N. W. 854; Mayo v. State, 7 Tex. App. 342; Fizell v. State, 25 Wis. 364; People v. Goulette,

82 Mich. 36, 45 N. W. 1124; State v. Tilman, 30 La. Ann. 1249, 31 Am. 236; State v. Grossheim, 79 Iowa 75, 44 N. W. 541; Proper v. State, 85 Wis. 615, 55 N. W. 1035; Commonwealth v. Murphy, 165 Mass. 66, 42 N. E. 504, 52 Am. St. 496, 30 L. R. A. 734; State v. Forsythe, 99 Iowa 1. 68 N. W. 446; State v. Bricker, 135 Iowa 343, 112 N. W. 645; State v. Mehojovich, 118 La. 1013, 43 So. 660: Sigerella v. State (Del., 1909), 74 Atl. 1081; Heath v. State (Ind., 1909), 90 N. E. 310; State v. Jones (Iowa, 1909), 123 N. W. 960; Perkins v. Commonwealth (Ky., 1909), 124 S. W. 794.

"State v. Enright, 90 Iowa 520, 58 N. W. 901; Rodriguiz v. State, 20 Tex. App. 542; Reg. v. Barratt, 12 Cox C. C. 498; People v. Crosswell, 13 Mich. 427, 432, 87 Am. Dec. 774: State v. Cunningham, 100 Mo. 382. 392, 12 S. W. 376. If the female is actually under the statutory age of consent, evidence to show facts from which the accused might have inferred that she was of age to consent

commit rape.12 Most, if not all the American authorities, reasoning from the difference in climate between England and America, the diversity of habits of living and the peculiar intermingling of races in America, have regarded this presumption as rebuttable.13

But the evidence of physical capacity or of the actual maturity of the infant must be clear and cogent. Slight or unconvincing evidence of actual capacity will not be enough to justify submitting the case to the jury.14

15

§ 409. Relevancy of the victim's complaint-Proving the details of what she said.-The fact that the victim of a rape was weeping, or that she made immediate complaint, as well as when she made it and to whom, being material and relevant to show the commission of the crime, may be proved as original evidence on the direct examination of the prosecutrix16 as an exception to

is inadmissible. People v. Ratz, 115 supply the want of age. Cal. 132, 46 Pac. 915.

12 Reg. v. Philips, 8 C. & P. 736; Reg. v. Jordan, 9 C. & P. 118; Rex v. Groombridge, 7 C. & P. 582; State v. Handy, 4 Harr. (Del.) 566, 567; McKinny v. State, 29 Fla. 565, 10 So. 732, 30 Am. St. 140.

13 Williams v. State, 14 Ohio 222, 45 Am. Dec. 536; People v. Randolph, 2 Park. Cr. (N. Y.) 174, 177; Heilman v. Commonwealth, 84 Ky. 457, 461, I S. W. 731, 8 Ky. L. 451, 4 Am. St. 207; State v. Jones, 39 La. Ann. 935, 936, 3 So. 57; Beason v. State (Miss., 1909), 50 So. 488,.

"Godfrey v. State, 31 Ala. 323, 328, 70 Am. Dec. 494n; State v. Goin, 9 Humph. (Tenn.) 174, 177; Peckham v. People, 32 Colo. 140, 75 Pac. 422. A boy over fourteen is presumed capable. State V. Handy, 4 Harr. (Del.) 566, 567; State v. Goin, supra. If a crime be not merely the result of boyish pugnacity, but of some passion such as lust in the case of rape, the law will interpose and the infant, though under fourteen, will be punished. Malice and wickedness will

State v.

Pugh, 7 Jones (N. Car.) 61, 63. Cf.
Heilman v. Commonwealth, 84 Ky.
457, I S. W. 731, 8 Ky. L. 451, 4 Am.
St. 207.

15 State v. Bedard, 65 Vt. 278, 26 Atl. 719.

16 State v. Patrick, 107 Mo. 147, 163, 17 S. W. 666; Polson v. State, 137 Ind. 519, 35 N. E. 907; Griffin v. State, 76 Ala. 29, 32; Territory v. Godfrey, 6 Dak. 46, 50 N. W. 481; People v. Barney, 114 Cal. 554, 47 Pac. 41; Oleson v. State, 11 Neb. 276, 279, 9 N. W. 38, 38 Am. 366; People v. Scalamiero, 143 Cal. 343, 76 Pac. 1098; State v. Carpenter, 124 Iowa 5, 98 N. W. 775; State v. Sudduth, 52 S. Car. 488, 30 S. E. 408; People v. Scattura, 238 Ill. 313, 87 N. E. 332; State v. Neil, 13 Idaho 539, 90 Pac. 860, 91 Pac. 318; State v. Symens, 138 Iowa 113, 115 N. W. 878; State v. Bebb, 125 Iowa 494, 101 N. W. 189; State v. Stines, 138 N. Car. 686, 50 S. E. 851; Dickey v. State, 86 Miss. 525, 38 So. 776; Posey v. State, 143 Ala. 54, 38 So. 1019; State v. Egbert, 125 Iowa 443, 101 N. W. 191; State v.

the rule excluding hearsay evidence, or of any other witness. It may be shown that the complaint was made, where and to whom it was made, and that some person was accused who must not be named. But the details of what the prosecutrix said, and particularly the name of the person she accuses of the crime, cannot be proved on the direct examination,18 unless the complaint is so closely connected with the time or place of the crime as to form a part of the res gesta.1o

§ 410. Proving details to impeach or corroborate.-Though the particulars of the complaint are not generally receivable from the

witness who testifies to the fact that it was made, counsel for the accused may, with propriety, bring out the details upon crossexamination to contradict or to impeach the witness, or the prosecutrix if she testifies.20

As an exception to the general rule the details of the complaint are sometimes allowed to be shown, sometimes upon the direct examination but usually in rebuttal solely to corroborate the prosecutrix (and then only after she has been impeached on crossexamination), by showing that she told the same story to several persons in or out of court.2

But the details of the complaint cannot be introduced if the prosecutrix refuses to testify, or if she cannot testify because she has died before the trial,22 or because she is an imbecile.23

§ 411. Delay in making complaint-Reasons for delay.-Undue delay and even delay for a few days, unless reasonably explained,

gesta, see 19 L. R. A. 744, note; Elliott Evidence, § 3098. Admissions and confessions, see Elliott Evidence, § 3103; corroboration, § 3102; circumstantial evidence, § 3104; variance, 3109; clothing worn by prosecutrix or by defendant, admissible, § 3106.

20 State v. Freeman, 100 N. Car. 429, 433, 5 S. E. 921; Wood v. State, 46 Neb. 58, 64 N. W. 355; State v. Clark, 69 Iowa 294, 296, 28 N. W. 606; Barnett v. State, 83 Ala. 40, 44, 3 So. 612; Griffin v. State, 76 Ala. 29, 32; Pleasant v. State, 15 Ark. 624; Thompson v. State, 38 Ind. 39, 3 Greenl. on Ev., 213; Parker v. State, 67 Md. 329, 331, 10 Atl. 219; Sexton v. State (Ark., 1909), 121 S. W. 1075. "If these declarations are in accordance with the testimony given in court, they tend to strengthen and give effect to that testimony; if against it, the testimony is destroyed." Johnson v. State, 17 Ohio 593; approved in State v. Patrick, 107 Mo. 147, 163, 17 S. W. 666.

44-UNDERHILL CRIM. EV.

21 Castillo v. State, 31 Tex. Cr. 145, 151, 19 S. W. 892, 37 Am. St. 794; State v. Byrne, 47 Conn. 465, 467; State v. Kinney, 44 Conn. 153, 26 Am. 433; Barnett v. State, 83 Ala. 40, 44, 3 So. 612; Oleson v. State, 11 Neb. 276, 281, 9 N. W. 38, 38 Am. 366; Proper v. State, 85 Wis. 615, 55 N. W. 1035; State v. Langford, 45 La. Ann. 1177, 1180, 14 So. 181, 40 Am. St. 277; State v. Hutchinson, 95 Iowa 566, 64 N. W. 610; State v. Werner, 16 N. Dak. 83, 112 N. W. 60; State v. Carpenter, 124 Iowa 5, 98 N. W. 775; State v. Parker, 134 N. Car. 209, 46 S. E. 511, and see cases in last

note.

22 Reg. v. Megson, 9 C. & P. 420.

23 State v. Meyers, 46 Neb. 152, 64 N. W. 697, 37 L. R. A. 423n. Such evidence, though in corroboration, may be received before she testifies. Proctor v. Commonwealth (Ky.), 20 S. W. 213, 14 Ky. L. 248; State v. Mitchell, 68 Iowa 116, 119, 26 N. W. 44. Contra, Johnson v. State, 17 Ohio 593.