SEPARATE CONCURRING OPINION.
TRIMBLE, J.After a careful study of the record and of all the authorities cited, and many others in addition thereto, I am driven to the conviction that we are without authority to interfere with the verdict, and, therefore, concur in the affirmance of the judgment. The jury are the judges of the evidence in an action for rape as in any other case. It is only when the appellate court can say that, taking all the evidence and circumstancés into consideration, there is no substantial evidence to support plaintiff’s charge, that we can nullify the finding of the jury. And in all the cases I have examined, where the judgment was reversed outright, it will be found that the courts did so, not simply because the woman failed to complain immediately thereafter, but because her charge was unsupported by the surrounding and conceded facts; and her admitted conduct contradicted her claim that the act was against her consent. In other words, although she said with her lips that she did not consent, yet by her admitted conduct, she said she did consent. In such event, there being nothing but her bare word to support the' charge, the reviewing court could well say there was no substantial testimony offered in her behalf. In the celebrated Musser case (78 Mo. 153), for example, al*163though the woman said with her lips that she did not consent, yet, by allowing herself to be taken quietly and without resistance from the side of, and without disturbing, her sleeping female companion, out of her room down a flight of stairs through a long hall, into defendant’s room and placed in his bed, all in a house occupied at the time by others, she said far more emphatically that she did consent.
In the Champagne case (189 Mo. 709), the charge was wholly unsupported by any results attending an occurrence of that character, such as laceration of the parts, signs of violence, etc., and there was nothing to show the physical condition and mental anguish which ordinarily follow. It was simply the bare word of the girl, and her word was directly contradicted by her conceded actions. The court said: “The statements of plaintiff as to this occurrence must be viewed in the light of all the surrounding facts and circumstances. If the physical facts and all the circumstances appearing in evidence, together with the surrounding conditions, absolutely negative and destroy the force of such statements, then, in contemplation of law, such statements do not amount to any substantial evidence of the facts to which they relate.”
In the cases of State v. Brown, 209 Mo. 413, and State v. Tevis, 234 Mo. 276, the charges were not only unnatural (between parent and child), but they were also wholly unsupported by any attendant circumstances, and the evidence of the prosecutrix in each case was of a contradictory nature. In the Tevis case the court at page 284 said: “A conviction in cases of either incest or rape may be had upon the uncorroborated evidence of the prosecutrix, but when the evidence of such prosecutrix is of a contradictory nature, or when applied to the admitted facts in the case, her testimony is not convincing, but leaves the mind of the court clouded with doubts, she must be corroborated,, or the judgment cannot be sustained.”
*164In the case of State v. Goodale, 210 Mo. 275, the reputations of the girl and her mother were bad both for truth and chastity, there was nothing to support the charge except the bare word of the girl, and not only was there no evidence of the act upon the girl’s person but there was testimony of a physician who examined her that “there was nothing to indicate that she had been foully dealt with. ’ ’ In addition to all this, the conceded actions of the girl and her mother were wholly contradictory of her - oral claims. The court said: “No man oug’ht to be incarcerated in the penitentiary upon such an unnatural and unreasonable story, wholly unsupported, as it is, by any fact or circumstance corroborating it. ’ ’
In not a single case either in this or in other states, coming under the writer’s notice, has a reviewing court held that failure to complain, alone and of itself, is sufficient to conclusively show consent. It must be remembered that in this case the plaintiff is corroborated in her statement of the surrounding and attendant circumstances, even by the defendant himself, except as to what took place between them. But, as said in the main opinion, undoubtedly something took place be-, tween them when they were alone in the house that night. The defendant says he did nothing. The plaintiff says he did, and that it was by force and against her will. And there is no evidence that plaintiff consented, unless consent is implied in the fact that she said nothing about it until the condition of her lacerated parts compelled her to reveal it. And unless mere failure to complain conclusively shows consent, notwithstanding the presence of other corroborating facts and circumstances, we are without authority to interfere with the jury’s verdict. Now, as stated above, there is no case holding that mere lapse of time between the offense and complaint conclusively shows consent, or destroys the charge, as matter of law. On the other hand, lapse of time between offense and complaint is matter for *165the consideration of the jury in. determining whether such delay is consistent with the testimony of the prosecutrix. And, where there has "been delay, the jury are instructed that, although the' prosecutrix" failed to complain, this fact alone will not prevent recovery or conviction provided the jury believe from the evidence that defendant did commit the act charged. And all the cases say failure of the victim to corpplain immediately is to be considered as tending to show consent on her part. That is, it does not show it conclusively, but is a circumstance tending to show it which the jury should consider. As said in State v. Byrne, 47 Conn. 465, “where a considerable length of time has intervened between the commission of the offense and the statement, this fact, with all the circumstances, is to be considered by the jury in weighing the evidence.” In that case there was 18 months delay. In State v. Reid, 39 Minn. 277, l. c. 281, it is said: “ It is laid down very generally that if the complaint is not made without any inconsistent delay, it is a strong, but not conclusive, presumption against the truth of the charge. ’ ’ In State v. Knapp, 45 N. H. 148, it is said that the unexplained silence of the prosecutrix for a considerable time is calculated to cast suspicion upon her testimony and seriously affect her credibility. This, of course, means that the question is still one for the jury. “In case of rape, if the party raped conceal the fact for any considerable time after an opportunity to complain, except from fear, this and like circumstances ab ford a strong, though not conclusive, presumption that her testimony is feigned.” [Citing 1 Hale, 633-635. Higgins v. People, 1 Hun. (N. Y.) 307.] “Any considerable delay on the part of the prosecutrix to make complaint of the outrage constituting the crime of rape, is a circumstance of more or less weight depending upon the other surrounding circumstances. [People v. O’Sullivan, 104 N. Y. 481.] In the case of State v. Peter, 8 Jones (N. C.) 17, where no complaint was *166made for two weeks, the court said: “It is not a rule of law that silence, under such circumstances, raises a presumption that the witness has sworn falsely. The passages in the books, to which reference was made on the argument, use the word, “presumption,” not as a rule of law, hut an inference of fact, and treat of silence, as a circumstance tending strongly to impeach the credibility of the witness on the ground that a forcible violation of her person so outrages the female instinct, that a woman, not only will make an outcry for aid at the time, hut will instantly, and involuntarily, after its perpetration, seek some one to whom she can make known the injury and give vent to her feelings. The want of this demonstration of feeling-or ‘involuntary outburst,’ is treated of as a circumstance tending to show consent on her part; hut it is nowhere held that this female instinct is so strong and unerring as to have been made the foundation of a rule of law, as distinguished from a rule in respect to evidence, and the weight to which it is entitled; which is a matter for the jury.” In Turner v. People, 33 Mich. 382, it is said that concealment of the injury for any considerable time after the woman has opportunity to complain is one of the circumstances having a strong tendency to show that her testimony is false or feigned. In State v. Cross, 12 Iowa 66, l. c. 70, the court said, in speaking of the failure to make outcry and complaint, “while the absence of such outcries and complaints tend strongly to rehut the hypothesis of guilt, they are by no means conclusive. Her credibility is to he left to the jury, and these and other circumstances are to he left to their consideration. And the same is true, as to the fact that her garments were not torn, and bore no evidence of injury. If nothing of this kind appears, the jury should, from the peculiar character of-the case, hesitate long before conviction. The virtuous female, who has in fact been thus injured, will not ordinarily omit to make known by her cries *167the threatened crime; will not he overcome without more or less injury to her garments; will not suffer in silence and without, as soon as practicable, making known this greatest of wrongs to her person. And yet the jury may conclude, under some circumstances, that she speaks the truth, and that the crime was committed, though all these circumstances be wanting.” (Italics ours.) And to the same effect is a host of cases too numerous to cite but which may be' easily found by a patient and persistent search. It is true, in many of the cases where such remarks are found, there were reasons given why the complaint was not made sooner. But the remarks show that mere failure to complain, alone and of itself, is not conclusive of the defendant’s innocence. And in many other cases the reasons given for not making complaint were no stronger than those given in the case at bar, namely, fear of the defendant and the dread and horror of being involved, before the public, in such a shameful and indecent transaction. That mere failure to complain does not arise to the dignity of a rule of law forbidding recovery is shown hy 4 Blackstone 211. He states that the laws of Scotland and Arragon required that complaint must be made within 24 hours and that afterward by statute the time in England was extended to 40 dáys, but that at the time he wrote, there was no time of limitation fixed, “but the jury will rarely give credit to a stale complaint.” And on page 213 the same author says that the person ravished is 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.” He then goes on to say that if she be of good fame, if she presently complained, etc., “these and the like are concurring circumstances which give greater probability to her evidence. But on the other side, if she be of evil fame, and stand unsupported by others; if she concealed the injury for any *168considerable time after she had opportunity to complain; if the place where the fact was alleged to be committed was where it was possible she might have been heard, and she made no outcry; these and the like circumstances carry a strong but not conclusive presumption that her testimony is false or feigned.”
It is needless to go further in the search for authorities in support of the view that the question in the case at bar was one solely for the jury to determine. In this case the woman was of good reputation, there is no question but what defendant and she were alone in the house that night and that something did occur there which profoundly affected her mental and .physical nature to such an extent as to be noticed by all who knew her whether favorable to her side or not, and that whatever it was had its origin that night. Several persons examined her private parts and testify as to their lacerated condition, and two doctors say it could have been produced in the way she says it was. There is no charge that she consented to the intercourse. She says she resisted and made outcry as loud as she could. The fact that she was not heard does not disprove her story when the nearest house was across the street and the doors and windows of both houses were shut and the other persons doubtless absorbed in their own affairs. The evidence that the muscles of her private parts were ruptured and will not heal as a result of the intercourse is not inherently so impossible or improbable as to be unbelievable when her age and her slight size, the power and build of the defendant, the haste and ruthless fury with which the act was consummated, and the fact that she was a virgin intact are all considered. The effects produced by the ordinary act of copulation by which the human race is perpetuated are not safe criteria by which to .judge, ex cathedra, what would necessarily result to this woman’s private parts under the circumstances *169of a forcible ravishment. For all these reasons I am constrained to agree to an affirmance of the judgment.