The prisoner at the bar stands indicted for the commission of a rape upon Margaret Miller. This crime, from the very nature of it, is apt to excite indignation in every breast; and when perpetrated on an infant of this age, that indignation becomes greater. It is, however, your duty to divest yourselves of all warmth and all prejudice, and to exercise your judgment upon this case in the most temperate manner. If it shall appear to you that the girl, young and unexperienced as she may be, yielded her consent, it is no rape, and you must pronounce the prisoner not guilty, however criminal in the eye of morality his ..conduct may be.' The whole question will, I think, depend upon the credit which is to be given to her: if she is to be believed, there cannot be a doubt as to the prisoner’s guilty It is evident that there has been a connection between them, and the single question that remains is, whether it was against her consent. It is a circumstance that deserves your consideration, that a very long time elapsed after the commission of the fact, before slie made any disclosure, and this, unless it can be satisfactorily accounted for, must undoubtedly detract much from her credibility. She attributed it to the terror which originally possessed her *47mind, and which she says continued as long as he frequented the house of the person by whom she was adoptfid.
The court cannot with propriety charge you, gentlemen, whether you ought, or ought not, to give credit to the principal witness: that is certainly your province.
If, upon the whole, you shall think her worthy of credibility, you must say the prisoner at the bar is guilty; if otherwise, you are bound to acquit him.
The jury immediately returned a verdict of guilty„
General Sessions, Sept. Term, 1833. Levi Washburn was indicted for an assault and battery, upon MaryrAnn Gilbert, (who was about fifteen years of age,) on the 11th of July, 1833. She swore that the defendant assaulted, and had a connection with her, in the suburbs of the city, against her consent.
It was contended,- on the part of the defendant, that the story told by Mary-Ann was improbable, and that the connection was with her consent.
The court had great doubts whether the passions had arrived to that maturity to authorize a supposition of a connection, of that nature, with her consent; she being very small of her age, and had few marks of puberty.
The District Attorney pressed it in his argument to the jury; and the court observed to them, there was 'no definite time—it despended more upon the constitution and habits of body, than upon the age of the party.
The jury, however, returned a verdict in favour of the defendant.