Defendants were convicted of the crime of rape. On this appeal they contend: (1) That there was not sufficient evidence of force to constitute rape. (2) That the trial court misdirected the jury, particularly on the matter of included offenses. (3) That the trial court erred in failing to answer the question of the jurors on request for clarification.
On the first contention appellant argues that the story of the prosecutrix is such as not to be worthy of belief. Defendants admitted having sexual intercourse with the prosecutrix. They testified that she not only consented, but agreed thereto for a price, and that her charge of rape was made after it was learned that defendants did not have sufficient funds to pay the sum she demanded. The acts of intercourse took place in the front seat of a 1937 Chevrolet sedan. There is evidence that the prosecutrix was a woman of unchaste reputation. It is not disputed that she drank beer at a tavern with defendants during the evening in question; that one of the defendants took, or attempted to take, some liberties with her, and that thereafter *Page 170 she went home and later returned to the car of defendants while a tire was being repaired, knowing that she would be alone with two men with whom she was scarcely acquainted, and who had been drinking.
Appellants contend that the account related by prosecutrix was so highly improbable that it was not entitled to credence. They argue that the acts of sexual intercourse occurred in the front seat of a 1937 Chevrolet sedan, and that said acts could not have been accomplished without cooperation. While there are some aspects of the story related by prosecutrix which seem somewhat improbable, yet, there is sufficient evidence of force and violence in the accomplishment of sexual intercourse without consent on her part to justify submission of the case to the jury. Defendants point to the fact that she had a reputation for unchastity and immorality. But prior unchastity does not compel an inference of consent. Such reputation and disposition for immorality merely constitute some circumstance which indicates some likelihood that she consented as claimed by the defendants, but the court would not be warranted in taking the case from the jury under the facts as related by her. Detailing of her testimony would serve no useful purpose. Suffice it to say that if believed by the jury, it was such as to justify the verdict rendered.
We shall discuss the second and third contentions together. After the jury had deliberated for more than two hours, the members of the jury returned to the courtroom, and the jury foreman stated:
"We would like to know this, your Honor: In view of the fact that they admit — or speaking of the defendants — admit having committed sexual intercourse, can the jury consistently — and we have underlined that — find them guilty of a lesser charge of [than] rape, which would be either of the two other included offenses?"
The court endeavored to contact counsel for both sides, but failed to get in touch with defendants' counsel. The judge then stated that "the court is not permitted to re-instruct *Page 171 you in this case." He asked the foreman if the jurors had difficulty in understanding the meaning of any instruction, and the foreman answered:
"I don't think so, your Honor. I think we are fairly clear on the instructions, other than in the one set of circumstancesthat we outlined in the question. We realize that there are alternatives in the possibilities — that is, several possible verdicts, let me put it that way."
The court then stated that if there were no difficulty in understanding the instructions, the matter was not for the court but for the jury to decide, and directed the jury to attempt by further deliberations to arrive at one of the verdicts stated in the instructions. Several hours later, the jury returned a verdict of guilty of rape against each defendant.
Appellants contend that the court should have given requested instructions and to have refrained from giving a portion of instruction No. 5, on the ground that the jurors became confused. Counsel argues that since the defendants admitted having sexual intercourse, that the court should have made it clear that the question to decide was whether or not such sexual acts were by force or with the consent of prosecutrix; and that having given instructions which ignored the admission of sexual intercourse, when the jury returned for clarification, the court should have stated that under the instructions, in view of the fact that rape involves sexual intercourse without consent, that defendants could be convicted of one of the lesser offenses consistentlywith the instructions given.
The court's instruction No. 5 reads as follows:
"Before you can find the defendant, Jack Dean Beeny, or the defendant, Roy Wilbur Franklin, guilty of the crime of rape, as charged in the information, you must believe from the evidence beyond a reasonable doubt each and all of the following elements:
"1. That the defendant on the 24th day of February, 1947, in the County of Salt Lake, State of Utah, did accomplish sexual intercourse with one Pearl . . . . . . . . .
"2. That the said Pearl . . . . . . . . . was a female not then and there the wife of either of the defendants. *Page 172
"3. That said act of sexual intercourse was accomplished against the will of and without the consent of said Pearl . . . . . . . . . .
"4. That said Pearl . . . . . . . . . resisted the said act of sexual intercourse, but her resistance was overcome by force or violence exerted by said defendant.
"You are instructed that the word `resistance', as used in these instructions, does not require that the said Pearl . . . . . . . . . . . . should have made the uttermost resistance. The law requires that the woman do what her age, strength, the surrounding facts and all attending circumstances make it reasonable for her to do in order to manifest opposition to the act of sexual intercourse. Mere objections in words, or such objections coupled with some resistance are not enough to make the acts of the accused or either of them constitute rape. The resistance required by the law is such resistance as the said Pearl . . . . . . . . was capable of making at the time and under the conditions there existing."
Under the evidence, elements one and two were not in dispute. The issue calling for deliberation upon the part of the jury was whether the prosecutrix resisted and such resistance was overcome by force exerted by defendants. Nevertheless, error cannot be predicated upon including elements one and two in the charge. It is clear from the question propounded by the foreman of the jury, hereinabove set out, that no confusion resulted from their inclusion.
Nor do appellants contend that the last paragraph of the instruction does not correctly state the law in this jurisdiction relative to the degree of resistance which must be shown to support a conviction of rape, as laid down in the case of State v. Roberts, 91 Utah 117, 63 P.2d 584. They do, however, insist that the first sentence of such instruction stating that the law does not require the uttermost resistance upon the part of the alleged victim, tended to minimize the manifestation of lack of consent which the law requires, and that if the giving of such instruction was not in and of itself prejudicial, such instruction reveals the clearly prejudicial error in the failure of the court to give an added clarifying instruction in response to the question asked by the jury. *Page 173
There is merit to the position taken. We are not unmindful of the dilemma faced by the court in being requested to further instruct the jury in the absence of defendants' counsel. It may be pointed out in passing, that in the circumstances it would not have been error under the Criminal Code so to do, since at the time in question the defendants were present in court. Section 105-33-3, U.C.A. 1943, provides:
"After the jury shall have retired for deliberation, if there is any disagreement among them as to the testimony, or if they desire to be informed on any point of law arising in the cause they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney and the defendant or his counsel."
Assuming that the trial court was of the opinion that despite the statutory provision, the defendants were entitled under the Constitution to have counsel present when the jury returned into court, and that defendants and their counsel had not waived the latter's presence, then in the premises the court should have delayed the proceedings for such length of time as would have sufficed to make diligent effort to secure counsel's presence, if the question asked by the jury revealed that the jurors may have misconstrued the court's definition of "resistance."
We are of the opinion that the question asked did so reveal, and that the failure to clarify the instructions was prejudicial to the rights of defendants. The circumstance under which the rule enunciated in State v. Roberts, supra, and expounded in Instruction No. 5 wherein it is stated in effect that the law does not require that uttermost resistance upon the part of the alleged victim need be shown, must be bourne in mind. In that case, the argument was made that in order to justify conviction of rape the evidence must show the most vehement exercise of every physical means within the female's power to resist the act and persistence in such resistance until the offense *Page 174 is consummated. It was in response to such contention that this court, criticizing the rule laid down in the older cases, made the statement in question. Said statement in the Roberts case would be enlightening to a member of the bar conversant with the cases which voiced the older rule. However, it might convey little meaning to the lay juryman, or, what might well be more damaging, it might convey too much. We are of the opinion that the instruction given would leave less uncertainty as to the resistance contemplated by law, with the first sentence omitted. By so stating, however, we do not wish to be understood as holding that its inclusion was in itself prejudicial error.
It is, nevertheless, in the light of such instruction that the question asked by the jury must be construed. The question indicated that the jury may have thought that the act of intercourse having been admitted by defendants, if there was a battery in connection therewith, the crime of rape was perpetrated. But such is not the law. A battery may have been committed by defendants and yet the resistance of prosecutrix may have been such as to constitute a mere token resistance — the manifestation only of reluctant consent. That the jury may and probably did construe the instruction as indicated hereinabove, is further indicated by the last statement made by the foreman of the jury just prior to the jury's retirement to further consider the case. In answer to a question of the court as to whether the jury had any difficulty with the instructions, the foreman responded,
"I don't believe we have any difficulty understanding the instructions. It is a matter of consistency there, whether one can hold [sic] without the other."
We conclude that error prejudicial to the rights of defendants was committed by the failure of the court to disabuse the minds of the jury as to the apparent misconception of the import of the instructions. The verdict and judgment *Page 175 are therefore set aside and the case is remanded for a new trial.
PRATT, C.J., concurs.