may, it seems, result in the rejection of evidence of the fact that a complaint was made.24

No invariable rule can be laid down defining what weight delay will have. It is so natural that a virtuous female should immediately complain of such an outrage to those connected with her by ties of blood or friendship, that her neglect to do so is a circumstance which may discredit her. Silence and delay in making complaint would be likely to awaken suspicion and doubt as to the truth of the complaint. Failure to make an outcry or complaint is always relevant.25 How much it ought to discredit her depends wholly upon the circumstances and upon the nature and validity of the reasons for her silence.20

"Hornbeck v. State, 35 Ohio St. 277, 35 Am. 608; Bueno v. People, I Colo. App. 232, 28 Pac. 248; Higgins v. People, 58 N. Y. 377; Thompson v. State, 33 Tex. Cr. 472, 26 S. W. 987; State v. Reid, 39 Minn. 277, 280, 39 N. W. 796; State v. Wilkins, 66 Vt. 1, 10, 28 Atl. 323; State v. Byrne, 47 Conn. 465, 467; Jackson v. State, 91 Wis. 253, 64 N. W. 838; State v. Peter, 8 Jones (N. Car.) 19; Maillet v. People, 42 Mich. 262, 3 N. W. 854; People v. Brown, 53 Mich. 531, 19 N. W. 172; People v. Glover, 71 Mich. 303, 38 N. W. 874; State v. Niles, 47 Vt. 82; Johnson v. State, 27 Neb. 687, 43 N. W. 425; Bailey v. Commonwealth, 82 Va. 107, 113, 3 Am. St. 87; State v. Cassidy, 85 Iowa 145, 52 N. W. 1, 2; People v. Lambert, 120 Cal. 170, 52 Pac. 307; People v. Gonzalez, 6 Cal. App. 255, 91 Pac. 1013; Kearse v. State (Tex. Cr.), 88 S. W. 363; Cowles v. State, 51 Tex. Cr. 498, 102 S. W. 1128; State v. Griffin, 43 Wash. 591, 86 Pac. 951. "Mere lapse of time between the perpetration of the act and the complaint is not the test of its admissibility. The time that intervenes is a subject for the jury to consider in passing upon the

weight of her testimony; and the degree of credit to be given it on account of the delay in making it depends on the particular circumstances of the case." The court in State v. Mulkern, 85 Me. 106, 107, 26 Atl. 1017; Feople v. Gage, 62 Mich. 271, 275, 28 N. W. 835, 4 Am. St. 854.

25 People v. Fong Chung, 5 Cal. App. 587, 91 Pac. 105. In a prosecution for rape, a concealment of the injury for any considerable time after the woman has had an opportunity to complain, and a failure on her part to make an outcry where the act is committed within the probable hearing of other persons, are circumstances which will justify a strong. but not conclusive, inference that the act was with her consent, and not by force. State v. Goodale, 210 Mo. 275. 109 S. W. 9.

If the silence or the delay of the prosecutrix in complaining is urged to lessen the force or credibility of her evidence, she should always be permitted to explain why she was silent. Her delay may be explained and excused by proof of sufficient cause therefor, as, for example, by want of opportunity, or by duress or threats by the perpetrator of the wrong." Thus, if she is a child she may show she did not complain immediately to her mother because she was afraid of a whipping, or because the latter was away from home when the crime was committed,28 or because shame prompted her to suppress the fact,29 or that she was deaf and dumb,30 or was very young, lived with the defendant and was influenced and threatened by him.31

§ 412. Medical testimony.-A physical examination to procure evidence is not indispensable,32 nor should the refusal of a modest prosecutrix to submit to one be allowed to discredit her as a witness. But a physician, after he has made such an examination, may state the age of the prosecutrix, that he found bruises on her, may state in detail the appearance of the limbs and genital

34

33

27 State v. Bebb, 125 Iowa 494, IOI N. W. 189.

"Polson v. State, 137 Ind. 519, 35 N. E. 907, 908; People v. Terwilliger, 74 Hun (N. Y.) 310, 26 N. Y. S. 674, aff'd 142 N. Y. 629, 37 N. E. 565.

"State v. Wilkins, 66 Vt. 1, 10, 28 Atl. 323, 327. Whether the reason is a good one is for the jury. State v. Reid, 39 Minn. 277, 281, 39 N. W. 796; Baccio v. People, 41 N. Y. 265, 271. And it is for them to estimate the force and effect of the silence and delay of the prosecutrix, keeping in view the reasons which caused them.

se State v. DeWolf, 8 Conn. 93, 20 Am. Dec. 90.

State v. Byrne, 47 Conn. 465; State v. Baker, 136 Mo. 74, 37 S. W. 810. Cf. People v. O'Sullivan, 104 N. Y. 481, 490, 10 N. E. 880, 58 Am. 530. "It would then clearly be

proper to show the reasons of such delay, whether caused by the threats of the prisoner, inability caused by the violence, want of opportunity, or the fear of injury by the communication to the only persons at hand." State v. Knapp, 45 N. H. 148, 155; People v. Glover, 71 Mich. 303, 307, 38 N. W. 874; Feople v. Knight (Cal., 1895), 43 Pac. 6.

32 Frazier v. State, 56 Ark. 242, 19 S. W. 838.

33 Barnett v. State, 83 Ala. 40, 3 So. 612. Defendant cannot insist that the prosecutrix, though a young child, shall submit to a medical examination. It is wholly discretionary with the court. McGuff v. State, 88 Ala. 147, 153, 7 So. 35, 16 Am. St. 25.

36

38

organs of the female,35 and that there had been actual penetration, or he may give an opinion whether penetration or complete sexual intercourse was possible, and whether pregnancy would ensue if a rape had been committed.39 Expert testimony of the physical strength and condition of the prosecutrix is always received to show her ability or inability to resist. The medical expert witness may give an opinion based upon a hypothetical question containing material facts proved or assumed to be proved, or he may base his opinion as to the causes of the physical condition of the prosecutrix upon the evidence of another physician who, having examined her, describes her condition as he observed it.41

43

A physician cannot testify as to the mental effects of indecent liberties on a woman's person, 42 or whether the accused could have had sexual intercourse with a woman without her consent. without resorting to extraordinary physical violence, as the question of consent is for the jury. The victim's exclamations. evincing her present feelings, or her statements of present suffering made to a physician in the course of medical treatment or examination may be proved by any one who heard them. They are original evidence, and whether the feelings were or were not simulated is for the jury.**

§ 413. Relevancy of the physical condition of the prosecutrix.—

Woodin v. People, 1 Park. Cr. § 52. Cf. State v. Yocum, 117 Mo. (N. Y.) 464, 467. 622, 23 S. W. 765, which holds that whatever the female told her physician is not admissible.

Hardtke v. State, 67 Wis. 552, 554, 30 N. W. 723; State v. Watson, 81 Iowa 380, 46 N. W. 868.

42

Evidence of the physical appearance and condition of the prosecutrix subsequent to the date of the alleged rape is always relevant to corroborate her evidence and as tending to show the probability or improbability that a rape was committed. Non-expert witnesses, who have had adequate opportunities for observation, may testify to facts relating to her condition, if within their own knowledge, where their observation does not require or presuppose the possession of special scientific or medical training." Thus, the husband, mother or other relative of the prosecuting witness may testify that they found bruises and other marks of violence on her body, or to the condition of her underclothing, or the bedding used by her, if it is first shown that they were worn when the alleged rape was committed. The birth of a child to the prosecuting witness on such a date as it would occur in the course of nature, assuming that she had had sexual intercourse with the accused at the date mentioned is always relevant," and the prosecuting witness may herself testify to the birth of a child." It is not permissible to prove a resemblance between the prisoner and a child born to the prosecutrix by exhib

44

Myers v. State, 84 Ala. II, 12, 4 So. 291; Brauer v. State, 25 Wis. 413, 418; Commonwealth v. Allen, 135 Pa. St. 483, 19 Atl. 957; People v. Baldwin, 117 Cal. 244, 49 Pac. 186; Skaggs v. State, 88 Ark. 62, 113 S. W. 346; Sigerella v. State (Del., 1909), 74 Atl. 1081; State v. Colomba (Del. O. & T. 1909), 75 Atl. 616.

43

State v. Murphy, 118 Mo. 7, 25 S. W. 95; State v. Sanford, 124 Mo. 484, 27 S. W. 1099; Polson v. State, 137 Ind. 519, 35 N. E. 907; State v. Sudduth, 52 S. Car. 488, 30 S. E. 408. One who has married the prosecutrix after the crime may testify that he had discovered she was not a virgin. Smith v. State, 52 Tex. Cr. 344, 106 S. W. 1161.

"Hannon v. State, 70 Wis. 448, 451, 36 N. W. 1; State v. Harness, 10 Idaho 18, 76 Pac. 788.

Gonzales v. State, 32 Tex. Cr. 611, 620, 25 S. W. 781. The clothing worn by the woman assailed, as well

45

as that worn by the accused, may be received in evidence to corroborate the evidence of the prosecutrix and as independent evidence to prove the commission of the crime. Ransbottom v. State, 144 Ind. 250, 43 N. E. 218; State v. Murphy, 118 Mo. 7, 16, 25 S. W. 95; State v. Duffy, 124 Mo. I, 10, 27 S. W. 358, 360; McMurrin v. Rigby, 80 Iowa 322, 324, 45 N. W. 877. But the clothing must be identified as that which she wore at the time of the crime. Gonzales v. State, 32 Tex. Cr. 611, 25 S. W. 781.

46 State v. Walke, 69 Kan. 183, 76 Pac. 408; State v. Danforth, 73 N. H. 215, 60 Atl. 839, 111 Am. St. 600; Druin v. Commonwealth (Ky., 1910), 124 S. W. 856.

47 State v. Miller, 71 Kan. 200, 80 Pac. 51; State v. Stone, 74 Kan. 189, 85 Pac. 808; and compare People v. Robertson, 88 App. Div. (N. Y.) 198, 84 N. Y. S. 401.

48

iting an infant three months old to the jury, though the contrary has been held in the case of an older infant," nor can her statement that the accused is the father of her child be received.5 It may be shown that the female was, upon an examination, found to have a venereal disease. To connect the accused with the rape evidence is then admissible to show that he had a similar disease when he was arrested, and if he denies this he may be cross-examined upon his physical condition at that time." Evidence that the prosecutrix had a venereal disease is not admissible to discredit her,52 though it may be proved by the accused by medical testimony that she had such a disease at the date of the rape, that it was contagious and that accused never had it.53

§ 414. The prosecutrix as a witness-Her competency and credibility-Infancy of prosecutrix when rendering her incompetent as a witness. The woman is competent to testify to the facts of the rape, though her evidence, because of the customary secrecy of the crime, and the ease with which such a charge may be made, should be somewhat carefully scrutinized. It has been held that to sustain a conviction her evidence must be corroborated on all material facts and circumstances if the accused goes on the stand and denies the crime.54 But it would seem that in the absence of

48

State v. Danforth, 48 Iowa 43-48, Cal. App. 626, 95 Pac. 380. The tes30 Am. 387.

49 State v. Danforth, 78 N. H. 215, 60 Atl. 839; State v. Falmberg, 199 Mo. 233, 97 S. W. 566, 116 Am. St. 476.

51

50 State v. Hussey, 7 Iowa 409, 411. People v. Glover, 71 Mich. 303, 305, 38 N. W. 874. Such a coincidence may create a very strong presumption of guilt in the minds of the jurors which the accused may endeavor to rebut by proving that prior to the date of the alleged rape the woman had sexual intercourse with other men. Nugent v. State, 18 Ala. 521, 526; State v. Otey, 7 Kan. 69, 77. See People v. Ah Lean, 7

timony of a physician to the physical condition of the defendant, gained by an examination in the jail, submitted to voluntarily, the defendant being told that the prosecuting attorney had sent the physician for that purpose only, is not privileged., People v. Glover, 71 Mich. 303, 307, 38 N. W. 874. See also, § 178, et seq. Privileged communications.

State v. Smith, 18 S. Dak. 341, 100 N. W. 740.

53

People v. Fong Chung, 5 Cal. App. 587, 91 Pac. 105.

54 Innis V. State, 42 Ga. 4733 Thompson v. State, 33 Tex. Cr. 472, 26 S. W. 987; Mathews v. State, 19