delivered the opinion of the Court:
At the June term, 1886, of the Macon circuit court, Charles: F. Huston was tried and convicted on a charge of rape upon the person of his sister-in-law, Melissa M. Conway, the jury fixing the term of his confinement in the penitentiary at two-years. The court formally sentenced him in pursuance of' the verdict, and the record of the conviction is now before us., for review.
The prosecutrix, at the time of the alleged offence, was temporarily staying in the family of the defendant, to do-housework and wait on her sister, who had recently been; confined in child-birth. At the time of the occurrence, which was on the 24th of July, 1885, the prosecutrix was under sixteen years bf age.
The case, upon the admitted facts, is brought within a. very narrow compass. That the defendant had criminal intercourse with the prosecutrix at the time and place charged by her, is admitted by him; but he claims it was done with her consent, while she, on the other hand, swears it was done-forcibly, and against her will. He also testifies to having had. criminal intercourse with her on two other different occasions ; hut this is positively denied by her. Thus, it will be perceived, the case, as submitted to the jury, presented for their determination a sharp issue of fact,—namely, whether the defendant committed the act forcibly, and against the will of the prosecutrix, or with her consent. The other evidence in the case, whether on the one side or the other, is important only in so far as it may directly or indirectly bear upon this issue.
There is corroborative evidence in the record having more or less force on both sides of this issue. That which is the most favorable to the accused is the admitted fact that the prosecutrix remained in the house of the defendant about two weeks after the affair, without saying anything to her sister, or anyone else, about it, and that even after she went home she made no complaint until the first of the following February, when she, for the first time, informed her mother of what had. occurred. In explanation of this delay in making complaint, she says, in her testimony: “I never told anybody about this matter until February, 1886. The reason I did not tell father and mother when I got home, was, I was afraid it would be worse than it was then. I was also afraid of Charles Huston. * * * I was afraid of him up to the time I told it, and continued to be afraid df him afterwards. ” It further appears, from her testimony, that the assault upon her brought on a spell of flooding, which continued about three weeks, and that she was so lacerated and torn that she finally had to consult a physician. In these statements she is corroborated by medical and other testimony.
It is claimed by counsel for the accused, that the account given of the affair by her, is too unreasonable to justify a conviction. It may be admitted that some of the details of her story are unreasonable, and still we are unable to say that the substance of it is so to such a degree as to justify us in reversing the case on that ground. The great question before the jury was, whether the alleged criminal assault was a mere fabrication on her part. As to the manner or details ■of the assault, assuming it to have been made, she might 'well, by reason of the terror and excitement of the moment, 3iave conceived erroneous impressions as to just how the criminal act was accomplished, but the fact of the assault itself is something about which she could not be mistaken. All this was matter for the jury, who had the witnesses before them, heard their testimony, observed their bearing and conduct on the stand, and they, by their verdict, sustain her as to the fact of the assault. The circuit judge who tried the case, in overruling the defendant’s motion for a new trial, has said he is satisfied with the jury’s finding, and we are not prepared to say that it is wrong.
It is also complained that the court refused to give to the' jury proper instructions on behalf of the accused. We do not think there is any substantial foundation for this claim. Several of the refused instructions might properly have been given, but the principles announced in them are sufficiently covered by other instructions given by the court. Such as are not, we think were properly refused, particularly those to which the argument of counsel is chiefly devoted, and which are pressed upon the attention of the court with great pertinacity. Without taking up these instructions and considering them in detail, it is sufficient to say, that conceding, for the purposes of the argument, merely, that the principle announced in them might, under special circumstances, be properly applied in a prosecution for rape, still we think the court ruled correctly in the present case, because, under the evidence, they were clearly calculated to mislead the jury.
The instructions in question, in varying phraseology, told the jury, in substance, that unless they found, from the evidence, that the prosecutrix, at the time of the assault, used all the force and resistance in her power to prevent the accomplishment of the act, they should find the defendant not guilty, or at least should take such fact into consideration in passing upon the question of his guilt. These instructions were all objectionable, because they did not negative the hypothesis that the prosecutrix’s failure to make the requisite resistance was caused by the threats and intimidation of the accused, there being evidence tending to prove that hypothesis. Thus, she swears that he threw her down, commanding her with an oath to keep still, saying, that if she would do so he would not hurt her, but that if she told it, it would not be good for her. Such language as this, coming from one bearing the relation he did to her and her family, was, in view of her youth and consequent inexperience, well calculated to inspire fear and serious apprehension for her personal safety in the event she offered any serious opposition to the consummation of his purpose. The instructions utterly ignore this aspect of the case, and were, consequently, as drawn, well calculated to mislead the jury, and for that reason, if for no other, should have been, as they were, refused. The instructions given on behalf, of the accused, fairly presented the case to the jury. They were told, that if, upon consideration of all the evidence in the case, they were not satisfied, beyond a reasonable doubt, that the defendant had criminal intercourse with the prosecutrix, forcibly and against her will, they should find him not guilty, and that until thus proven guilty the law presumed him innocent.
Upon the whole, we think the accused has no cause to complain of the rulings of the court below, and the jury having, found against him upon the facts, the judgment must be affirmed.
Judgment affirmed.