519. What Must be Shown.-"Sexual penetration" can mean nothing but the piercing into the distinctive organ of sex. Commissioners on Revision [ed. of 1865], § 321; N. Y. Penal Code, § 280; 2 Rev. Stat. 735. Where there is absolutely no proof of "sexual penetration" of a rape accomplished, at most there is only proof of an attempt. Reg. v. McRue, 8 Car. & P. 641; Guy, Forensic Medicine [1st Am. ed.], with notes by Lee, 65; Roscoe, Crim. Ev. [10th ed.] 902; Beck, Medical Jurisprudence, 53.

In the United States proof of the slightest penetration without emission has always been regarded as sufficient. State v. Hargrave, 65 N. C. 466; Waller v. State, 40 Ala. 325; Com. v. Thomas, 1 Va. Cas. 307; State v. Sullivan, Add. Rep. 143; 1 Swin. Jud. Reg. 98; 1 Hale, P. C. 628 and note; Taylor, Medical Jurisprudence (7th Am. ed.) 701; Ogston, Lect. Medical Jurisprudence, 90; Beck, Medical Jurisprudence, 229, 223. The essence of the crime is not the begetting of a child, nor the physical injury inflicted, but the violence done to the feelings and person of the sufferer and to her sense of honor and virtue. People v. Sullivan, supra, 1 Barb. Crim. L. [3d ed.] 77; 1 Swin. Jud. Reg. 98. No form of words is necessary to prove penetration, the proof, therefore, can be inferred from circumstances apart from the statement of the party injured. People v. Crowley, 102 N. Y. 234; Whart. Am. Crim. L. § 555.

Nothing is better established than that the prosecutrix, in trials of this nature, may testify as to what she did or said after the commission of the offense. In the language of Sir William Evans, 2 Pothier, Ev. 289:

"Upon accusations for rape, for the forbearance to mention the circumstances for a considerable length of time is, in itself, a reason for imputing fabrication, unless repelled by other considerations, the disclosure made upon the first proper opportunity after its commission, and the apparent state of mind of the party who has suffered the injury, are always regarded as very material; and the evidence of them is certainly admitted without objection."

The text-books speak thus: "It must appear that the offense was committed without the consent of the woman, but it is no excuse that she yielded at last to the violence, if her consent was forced from her by fear of death, or by duress." Roscoe, Crim. Ev. (6th London & 6th Am. ed.) 806; 1 East, P. C. p. 444, § 7.

So

It is an extreme which they put, that shall be no excuse. in Viner it is laid down, that a woman cannot be ravished by one man without some extraordinary circumstances of force. 18 Vin. Abr. Rape, p. 155, pl. 11. In People v. Abbot, 19 Wend. 192, Cowen, J., says: "Any fact tending to the inference that there was not the utmost reluctance and the utmost resistance, is always received." Why, if the jury are not to inquire whether there were the utmost reluctance and the utmost resistance? This saying has been cited with approval in more than one instance. People v. Morrison, 1 Park. Crim. Rep. 625; People v. Quin, 50 Barb. 128; Reynolds v. People, 41 How. Pr. 179.

Certainly, if a female, apprehending the purpose of a man to be that of having carnal knowledge of her person, and remaining conscious does not use all her own powers of resistance and defense, and all her powers of calling others to her aid, and does yield before being overcome by greater force, or by fear, or being surrounded by hostile numbers, a jury may infer that, at some time in the course of the act, it was not against her will.

Our statutes provide that: "In prosecutions for the offense of rape, proof of penetration shall be sufficient evidence of the commission of the offense." Under this statute, however it may have been at common law, the slightest penetration of the genital organ of the male into that of the female is sufficient, other elements of the crime being present, to establish guilt. Brauer v. State, 25 Wis. 413; State v. Tarr, 28 Iowa, 397; Bishop, Statutory Crimes, & 488.

That a scoun

In commenting upon some of the later cases the authors of a recent work on medical jurisprudence justly say: "In our opinion this is not only good law, but common sense. drel who attempts the chastity of a child or a young girl should escape punishment merely because her youth, or the imperfect development or narrowness of the parts prevent his fully consummating the crime, appears to us as undesirable as it would be unjust." Woodman & Tidy, Forensic Medicine & Toxicology,

640.

"The jury," says Mr. Bishop, "may infer the penetration from circumstances, without direct proof." Bishop, Statutory Crimes, $488. Discussing the same question, the supreme court of lowa said: "Nor is the prosecution bound to show the fact of actual penetration by the prosecutrix herself." State v. Tarr, supra.

§ 520. Reputation of the Prosecutrix for Chastity.-One of the most serious contentions that vex the appellate tribunal in cases of this character, arises from the attempt to prove the general reputation of the prosecutrix for chastity, before her character has been attacked. The general rule undoubtedly is, that evidence to sustain a witness whose character or credibility has not been attacked by the opposite party is inadmissible, the character being no part of the res gesta; but the strenuous argument in these cases is to the effect, that there is a well recognized exception to this rule in cases of rape or assault with intent to commit rape. In such cases, the general character of the prosecutrix for chastity being involved, it may be sustained, whether attacked

or not.

Upon this precise point the authorities are few, and they are not agreed. In State v. De Wolf, 8 Conn. 93, 20 Am. Dec. 90, evidence to prove the general character of the prosecutrix for truth to be good, though not impeached, was admitted by the trial court, and it was said by the appellate court that it would not be going too far, perhaps, to say that the general character of the witness, who is the victim of the outrage, in prosecutions for rape may always be shown. The case, however, was disposed of on other grounds, and the point was not decided.

In Turney v. State, 8 Smedes & M. 104, decided in 1847, Thacker, J., from whose opinion on this point there seems to have been no dissent, said: "The party ravished is a competent witness to prove the fact, but the credibility of her testimony mustbe left to the jury. It is legitimate to support her credibility by evidence of her good fame, or to attack it by evidence of her evil fame." "Such evidence," he added "tends to show, that the connection with the woman was had against or with her consent." This was all that was said upon the point, and no reference was made to the case of People v. Hulse, presently to be mentioned. The only authority referred to is 4 Bl. Com. 213, where the author adopting the language of Sir Matthew Hale in his Pleas of the Crown, as do most of the text-writers on the subject, said: "The party ravished may give evidence upon oath, and is in law a competent witness; but the credibility of her testimony, and how far forth she is to be believed, must be left to the jury upon the circumstances of fact that concur in that testimony. For instance,

if the witness be of good fame, if she presently discovered the

offense, and made search for the offender; if the party accused fled for it; these and the like are concurring circumstances which give greater probability to her evidence." See also East, P. C. 445; 1 Russell, Crimes, 562; 2 Whart. Am. Crim. L. (7th ed.) § 1149; 3 Greenl. Ev. § 212.

On the other hand, in People v. Hulse, 3 Hill, 309, decided in 1842, the supreme court of New York, composed of Nelson, Ch. J., and Bronson and Cowen, JJ., in an able opinion, declared that there was no authority for making the case of a witness swearing to a rape an exception to the general rule of evidence in relation to proof of character, and that as a question of principle no such exception should be made. Such evidence, it was thought, is calculated to draw off the attention of the jury from the true point in controversy, and to cause them to find a verdict of guilty more upon the good character of the prosecutrix, than upon a rational conviction of the defendant's guilt. And referring to the language of Lord Hale, above mentioned, it was denied that that judge meant to say that the good character of the prosecutrix may be shown before any question of character or "good fame" has been raised by the defense. "No one," it was said, “can read what Lord Hale has said in relation to prosecutions of this kind, without being satisfied, that greatly as he abhorred the crime of rape, he was very far from thinking that any unusual weight should be thrown into the scale against the accused. On the contrary, he regarded it as a case calling for unusual caution on the part of the judge and the jury, and where the testimony of the complaining witness should be received with more than ordinary doubt and suspicion." And the language of Lord Hale, also referred to by Blackstone, was quoted at length to sustain this conclusion.

This view of the law, which we consider the true one, is adopted by a philosophical writer, who, in treating of the evidence in a prosecution for rape, says that there are cases, perhaps exceptional in their circumstances, wherein sustaining evidence of the good character of the prosecutrix has been received when she was not attacked, but that the general and better doctrine admits it only to repel an attack. And he cites the cases above mentioned, which are the only ones to which our attention has been called. Coleman v. Com. 84 Va. 1; 2 Bishop, Crim. Proc. § 964.

The authority of Lord Hale has been occasionally invoked to

show that the case of a woman swearing to a rape, forms an exception to the general rule, and that evidence may always be given in support of her general character. It is true that Hale mentions the "good fame" of the witness as one of the "concurring evidences to give greater probability to her testimony;" but he nowhere intimates that he may call compurgators before the question of character or "good fame" has been raised on the part of the defense. 1 Hale, P. C. (ed. 1778) 633. And although what is here said by Hale has been repeated by most of the elementary writers upon crimes and criminal evidence since his day, not one of them has mentioned the case of a woman swearing to a rape as an exception to the general rule of evidence which we have been considering. 4 Bl. Com. 213; 1 East, P. C. 445; 3 Chitty, Crim. L. 812; 3 Stark. Ev. 1267; Roscoe, Crim. Ev. 710; Archb. Crim. Pr. & Pl. 453. If there be any such exception, we should certainly be able to find it laid down in some book of authority. Mr. Phillips, although he had no occasion to controvert a proposition of which he had never heard, has virtually denied the existence of any such exception. He says, if on cross-examination she admit her own misconduct in some earlier transactions, it would be proper on re-examination, to inquire into her conduct subsequent to such transactions, for the purpose of restoring her credit. And then, on the authority of Rex v. Clarke, 2 Stark. 241, he adds: other witnesses may also be called, to show that she has since retrieved her character. 1 Phil. Ev. (ed. 1839) 176. He puts the right to call sustaining witnesses on the ground that her character had been attacked.

In many of the states the statute, instead of reading "of good repute," provides that the female shall be "of previous chaste character." Under such a statute the character of the prosecutrix may be impeached by proof of specific acts of lewdness. Kenyon v. People, 26 N. Y. 203, 84 Am. Dec. 177; Carpenter v. People, 8 Barb. 603; Polk v. State, 40 Ark. 482, 48 Am. Rep. 17; People v. Brewer, 27 Mich. 134; People v. Clark, 33 Mich. 112; State v. Bryan, 34 Kan. 63.

Upon the issue the authorities concur in holding that evidence showing that the character of the prosecutrix for chastity was bad, is competent, and for the reason that it is more probable that an unchaste woman assented to such intercourse than one of strict virtue. The evidence is received upon this