(dissenting). — I will note my reasons for not concurring in paragraphs 1, 4 and 5 of the foregoing opinion.
I. I think the conversations between the prosecutrix and James, Millie and Tom Patrick, on Friday afternoon, July 19, 1889 were admissible even to prove the main issue, and certainly they were admissible as tending to explain Annie’s conduct. They were admissible to prove the issue upon the ground that, in my opinion, a conspiracy is clearly established between Charlie, Bug, Millie, Jim and Tom Patrick, to get rid of the prosecutrix and to suppress her testimony. It is true some of these conversations occurred the day before the alleged rape, but these former attempts on the part of defendant to ravish her were competent evidence. People v. O'Sullivan. 104 N. Y. 481, and cases cited. And the defendant had a right to dispute and disprove them. Hence the truth of the attempted rape on Monday, July 15, was an issuable fact.
But it is not necessary to put the admissibility of theso acts and conversations upon the theory of a conspiracy, nor did the trial court admit them on that theory, but they were admitted solely to affect the standing of Annie as a witness ; and for this purpose I have no doubt whatever they were competent without regard to whether there was a conspiracy or not, or whether defendant authorized them to approach Annie to suppress her testimony. There was no objection at the trial, nor was any urged here, to the admissibility of the conduct and acts of Annie, *181Millie, Jim and Tom; the objection going only to the conversations they had with Annie when defendant was not present. If the conduct and acts of these parties, in the absence of defendant, are admissible, then their conversations, in connection with her conduct and acts,, are admissible in order to characterize and explain such conduct arid acts. What is said in connection with an act must go in evidence with the act, or it could not be understood. It is like a question and answer going in evidence together. A third party asks defendant a question, and the latter answers. Could it be said that the answer was competent, but the question was hearsay, because a third party had asked it ? We have- nothing to do with the sufficiency of her explanation. That-is for the jury. I hold that her conduct should go to-the jury, with the explanation, and then the jury must-give her testimony such weight, viewed in the light of the explanation and the other circumstances in evidence-as accords with their judgment. The conduct, acts and conversations of all these parties are competent evidence as a part of the res gestae, and no error was committed in admitting them.
II. I regard instructions, numbered 4, 5 and 6, asked by defendant and refused by the court, as commentaries on the weight of the evidence of the prosecutrix, and cannot be supported on principle or authority. As an abstract proposition, I concede all that is said on this subject in the opinion of the court; but I deny the right or authority of the trial judge to tell a jury, in a case like this, that, if the prosecutrix “ concealed the-alleged rape until Friday after the alleged. commission1 of the alleged rape upon her, then the law presumes-such concealment inconsistent with defendant’s guilt or that, “if she continued friendly intercourse with defendant, then the law presumes such friendly intercourse inconsistent with defendant’s guilt, and renders-her charge of rape against him improbable.” The court *182is here asked to fix the time within which the prosecutrix in a rape case shall disclose the offense, and then, without any reference to the concurring circumstances, is asked to declare that in this case the law presumed that her concealment of the crime for a week was inconsistent with defendant’s guilt, and that the law presumed, if she remained on friendly terms with defendant, that her story was improbable. The law fixes no time within which a prosecutrix shall disclose the crime. The reasoning of the court in the opinion filed in this case is at fault in this. Quotations are made from Hale’s Pleas of the Crown and from Grreenleaf on Evidence, where these authors are discussing the admissibility of evidence; and, because they say that the failure of the prosecutrix to make complaint for any considerable length of time after she has had an opportunity to disclose the crime, carries a presumption that her story is false or feigned, and is, therefore, competent evidence, the conclusion is reached that the court ought not only to decide that the fact is competent evidence, but then go on and tell the jury how much weight they ought to give it. As illustrative of this point, I will quote a single sentence from Thompson on Trials : “ The experienced judge and practitioner must have discovered, in many cases, that the argumentative deductions of text-writers on the law of evidence, however appropriate in themselves, cannot be repeated to juries in'the form of instructions, without leading them to a misunderstanding of their duties, or trenching upon their exclusive province.” Section 2413. This language may very well be applied to “the argumentative- deductions” of judges, also, in their opinions in particular cases. It is the duty of the court to determine whether a fact proposed to be proved has any probative force, and that of the jury to determine how much probative forcé it has. “ The law is not a fixed science. It deals • with men and their affairs in the concrete, and it ought to be so administered as to .arrive at just and sensible results.” This *183language of the court in this case I heartily indorse; and upon that proposition I hold the court had no right to tell the jury that the law presumed the concealment of this alleged crime by this prosecutrix under the circumstances of this case for a week was inconsistent with defendant’s guilt. The fact that she concealed the crime for a week after she had an ■ opportunity to disclose it is a circumstance against her story, I admit; but how much weight it should have in this case, viewed in the light of all the facts and circumstances in evidence, is, in my opinion, for the jury, and not the court.
The same may be said of her remaining on .friendly terms with the defendant after the alleged crime. Did she explain satisfactorily why she concealed the crime, ■and remained friendly with .the defendant, after she says he ravished her'? Who shall answer this question, — the judge or jury? I answer, the jury. The court instructed in this case, as in all cases, that the jurors are the sole judges of the weight of the evidence and the credibility of the witnesses; and then to add that the law presumes that the testimony of one witness is improbable seems to me to be inconsistent. I can understand very well how the court can take a case from the jury because there is no testimony to authorize a verdict, but I do not see how a court can tell a jury that they are the sole judges of the weight of the evidence and the credibility of the witnesses, and then single out of a concrete case a fact, and tell the jury how much or little weight ought to be given that fact in the given case. Evidence is admitted because it has probative force. For the court to admit a fact as evidence, and then tell the jury that it has probative force, is a work of supererogation. If the court begins' this, where shall the line be drawn? It won’t do to single out a few facts in a case and tell the jury how much or how little probative force they have, thus giving such facts a prominence they do not deserve; and if you call the attention of the jury to every fact in the case, with its *184relation to all the other facts, the trial courts in Missouri would never get through with their business. This was practicable under the common-law system, where the judge summed up the evidence orally, and gave the jury his opinion of the different parts of the evidence in their relation to the whole, leaving it finally for the jury to find the facts ; but that would be utterly impracticable under our system, where the courts must instruct in writing. But our code has, in my opinion, prohibited this.
The majority opinion refers to numerous' eases where it has been held that the court was justified in instructing that certain presumptions might arise from a proved fact or a group of proved facts. This, I concede. But the rule is, and has been for a long time, that the court “shall not * * * sum up or comment upon the evidence, or charge the jury as to matter of fact.” R. S. 1889, sec. 4220. In the transition, however, from the common-law practice to the ■code practice, a part of the old became ingrafted upon the new, by incorporating into the latter the cases named by my brothers, where this court has held that instructions in regard to particular facts are proper ; but I regard all these as exceptions to the general rule I have named. I am opposed to making any more exceptions, or to enlarging the rule so as to make more exceptions probable. Some wise philosopher has said that the “ opinion of yesterday becomes the precedent of to-day, and will be doctrine to-morrow.” As the approved instructions in regard to the presumption arising from flight, the recent possession of stolen property, etc., are made, by the learned judge who wrote the opinion in' this case, precedents to j us tify the instructions I have quoted above, so the approval of these instructions to-day will be made precedents to let in another exception to-morrow, and so on ad infinitum. When the law raises a presumption, it is proper for the court to inform the jury fully in regard to it; but, where it is simply *185a presumption of fact, the trial courts in our state have no authority to invade the province of the jury, and tell them how little or how much probative force a given fact, or a given group of facts shall have. Is not the presumption arising from the concealment of an alleged rape by the prosecutrix a presumption of fact'? Does, the law declare that a woman has not been ravished if she failed to disclose the crime for a week or a day % No. This is not claimed. Annie K. Botts may have remained friendly with the defendant after her alleged injury, and concealed the affair for a week, and still defendant be guilty.
This is not all the evidence in the case, however. There are several hundred pages more of it. This conduct of hers, if a fact in this case, must be judged by all the other evidence in the case. Is her story probable ? Who has the right in this concrete case to answer that question ? I reply that the jurors are the sole judges of her credibility. They must judge her conduct in its relation to all the other actors and witnesses in the case. If the judge should instruct the jury in regard to the weight to be given to her testimony, why not tell the jury all the'concurring' circumstances that corroborate or discredit her, and then, in a minute way, show the relation of each fact to all the other facts, and how much weight ought to be given to each fact in relation to the other facts ? In other words, make a lengthy argument to the jury, showing why they ought to disbelieve her, and then, on the other hand, why they ought to believe her, and then wind up by saying to the jury: “ Gentlemen, I have given you my opinion in regard to the testimony of this witness, and in conclusion I will say to you that you are the sole judges of her credibility.” This the common-law judges did, but it is conceded that our code has abolished that mode of instructing juries. If the courthad the right to single out the facts named in the case at bar, and instruct the jury what probative force they had, I can see no reason why *186the judge cannot and. ought not to single out every fact in every case, and instruct as to its probative force. There is no place to stop that I can conceive of. There are two classes of instructions of this nature. One is where the court tells the jury that they may consider a fact ( naming it) in making up their verdict; another is where the court tells the jury what probative force to give to a stated fact. The former is vicious enough in practice, and the other is still more so. The court admits a fact as evidence, and tells the jury they may consider that fact in making up their verdict. Of course they may. If not, why admit it in evidence ? It has a marked effect on the jurors, however. Under our system, where the judge is not allowed to sum up, the jurors, as a rule, catch every word that falls from his lips, and seize-upon the written instructions, and scrutinize them closely, to learn what his opinion of the facts is ; and when the judge singles put a witness, and tells them that they may consider his interest, his conduct, his- acts, in determining the weight they will give his testimony, he produces the impression that he is suspicious, at least, of the truthfulness of such witness. And in practice I have often seen'such instructions used to lead ‘ ‘ juries to a misunderstanding of their duties.” I hold this kind of instructions goes to the extreme limit of the judge’s authority in regard to the weight of the evidence. And, to conclude the discussion of this phase of the question, I will quote the language of the supreme court of Alabama in Grimes v. State, 68 Ala. 166, as follows : “ There are so many considerations affecting the credibility of a witness that it is far better and more promotive of the ends of justice to leave the jury free in each case to determine in view of all the evidence, the witnesses whom they will credit, or the parts of the evidence of any witness which they will credit, and which they will discredit, than to fetter their judgment by inflexible rules which may compel them to conclusions they would not otherwise reach.”
*187I do not desire to be understood by anything I have said as indicating a desire to depart from the exceptions that have been made in this state to the general rule in regard to summing up the evidence or commenting on the facts, but I desire to be understood as being opposed to making any more exceptions, or modifying the general rule so as to make further exceptions probable. My conclusion on this point is that the instructions which were prayed for by the defendant, are not supported upon principle.
And I hold thát they are not supported by authority, especially .in this state. I have examined the authorities referred to by the court in this case as sustaining the theory that the trial court, in a rape case, ought to tell the jury that the failure of the prosecutrix to make known the crime for a considerable length of time, and her remaining on friendly terms with the defendant after the alleged rape, raised a presumption of law against the truthfulness of her story, and I confess I do not find in them the doctrine contended for.
In State v. Wilson, 91 Mo. 410, the alleged ravisher worked for the father of the prosecutrix, and lived in his house. He remained there three or four days after the alleged rape. The prosecutrix was sixteen or seventeen years old, and lived at home with her father and mother. She did not make complaint for five months, and then only when her father forced her, she being pregnant. The defendant, after he left hér father’s employment, worked for a neighbor, who lived within one hundred and twenty-five yards of her, and she saw him frequently. The reason she gave for not telling it sooner was that she was afraid defendant would kill her, as he had threatened to do if she told it. The defendant admitted the intercourse, but alleged that the girl consented. The defendant did not even ask for an instruction that the law presumed the *188•prosecutrix’s story improbable, but simply asked the court to instruct the jury that “her failure to complain -within a reasonable time, and the fact that pregnancy followed a- single sexual connection, are legitimate subjects of inquiry in determining whether there was force • on the part of,defendant, or consent to the intercourse” by the prosecutrix. This court held this instruction, • ought to have been given without modification. There is a wide difference in saying that a failure to complain within a reasonable time is a legitimate subject of inquiry in determining whether there was force used, :as was authorized in the Wilson case, and saying to the jury that a failure to make complaint for a week raised .a presumption of law that the story was improbable, as is directed to be done in the case at bar.
In State v. Witten, 100 Mo. 525, the prosecutrix had intercourse with her alleged ravisher on frequent • occasions for a year after the alleged crime, and she • did not inform anyone that she claimed she had been ravished for more than- a year afterwards, and not then till she discovered she was en ceinte. The evidence on behalf of defendant was an admission • of improper relations with the girl as far back as 1884 (the alleged l’ape having been committed after the ■harvest of 1885), but the deniál of the use of force on .any occasion. The court refused to give the following instruction prayed for by defendant: “If the jury believe from the evidence that, at the time the offense is alleged to have been committed, the prosecuting witness made no outcry, and did not, as soon as an opportunity offered, complain of the offense to others, but concealed it for a considerable length of time thereafter, then the jury should take this circumstance into consideration, with all the other evidence, in determining the guilt or innocence of the defendant, and whether a rape in fact was committed or not.” This court reversed the case because of the refusal of the court below to *189give this instruction. Judge Black, who delivered the opinion of the court, speaking of this error, said: “ The inference to be drawn from the concealment of the alleged outrage is, of Gourse, one of fact; and it may be said the jury should be left to make such inference from that and the other facts in the case as accords with their judgment. As a general rule, it is an usurpation of the functions of a jury for the judge to tell them what conclusions or presumptions of fact they should draw from one or more given facts ( Chouquette v. Barada, 28 Mo. 496; Jones v. Jones, 57 Mo. 138) ; but the refused instruction does not undertake to tell the jury what inference they should draw. They are only told to take the circumstances recited, if true, into consideration in determining the question of the guilt or innocence of the defendant. Such an instruction is in no sense an invasion of the province of the jury.” The instructions under discussion do the very thing condemned by the court in the Witten case; that is, they tell the jury what presumption they must draw from a certain fact, and to make it still more objectionable, they declare the law makes the presumptions. Judge Black says it is a usurpation to tell the jury what inference or presumption of fact they ought to draw from a given fact, but here the instructions tell the jury that the law presumes one thing from another. If waiting a week before making complaint raises a presumption of law that the story of the prosecutrix is improbable, ought not the failure to complain for a year and more make the presumption conclusive? Yet the court sent the Witten case back for new trial, with directions to leave it to the jury to say what inference they would draw from the failure to make complaint for that length of time.
I conclude, therefore, that, no matter what may have been the ruling of the courts of other states, the instructions under discussion are not supported by the *190adjudged cases in this state; and hold that the trial court committed no error in refusing them, and that the tenth instruction, given at the' instance of defendant, was all he was entitled to.
I think the complaints made by the prosecutrix the Saturday after the alleged rape were admissible to-corroborate her evidence in this case. The law fixes no time within which she must make complaint. “There is no iron rule on the subject.” Each case must be judged by its own circumstances. Mr. Wharton says i “Delay, when accounted for, does not exclude such statements.” Sec. 566, supra. And the authorities he refers to to sustain this proposition are: State v. Knapp, 45 N. H. 148; State v. Niles, 47 Vt. 82; State v. Marshall, Phil. (N. C.) 49, and State v. Peter, 8 Jones (N. C.) 19.
In State v. Knapp the prosecutrix did not tell her mother of the crime till a week or ten ->ays after its-alleged commission, and the reason she gave for not-telling it sooner was her parents were out of health,, and she feared the effect upon them. The trial court permitted witnesses to testify as to this complaint at the instance of the state as corroborative of her testimony. The supreme court of New Hampshire said: “The grounds upon which is received the proof of complaints by the prosecutrix, made soon after the injury, are that they are corroborative of her testimony on the stand, and tend to repel the presumption that would arise from the absence of such complaints; for it is laid down very generally that, if such complaints are not made soon or within a reasonable time after the inj ury, or without any inconsistent delay, it is a strong though not conclusive presumption against the truth of the charge. It is equally well settled, also, that the delay to make complaint may be explained by showing it was caused by threats or undue influence of the prisoner. It is in truth a question purely of fact, to be *191■determined by the jury ; and how much the delay in making complaint ought to weigh against the prosecution must depend upon the circumstances' of each particular case. * * * In the case now before us, the court could not say that the reason assigned for not ■communicating the fact of the injury to her parents would not properly tend to repel the presumption arising from the delay, and we, therefore, think it was rightfully received.” The court in other parts of the ■opinion go on to show that this kind of testimony is not admitted as part of the'res gesta,, but as affecting the credibility of the prosecutrix.
In State v. Niles, 47 Vt. 82, the prosecutrix did not make complaint for two months. This complaint was introduced in evidence over the objection of defendant. The supreme court on this point said: “Evidence of this character is only admissible as confirmatory of the evidence given by the party upon whom the rape is alleged to have been committed. It was ruled by Holuotd, J., in Clarke’s case, 2 Starkie, 241, that in a prosecution for rape the fact of a woman’s having made complaint soon after the assault took place is evidence. This rule has been embodied into all the text-books upon evidence; but it has never been understood that mere lapse of time could be made the test upon which the admissibility of such evidence depended. The time that intervenes between- the commission of the crime and the making of the complaint is a subject for the jury to consider in passing upon the question of the weight that should be given to the evidence ; so that this •objection was not well taken.”
In State v. Marshall, Phil. (N. C.) 49, the girl who claimed to have been ravished passed by her aunt’s on her way home after the alleged rape, and saw her, but did not tell her; but told her mother when she got home. The state was allowed to prove the statement made by the prosecutrix as corroborative of her *192evidence, and the supreme court of North Carolina-held it no error. In State v. Peter, 8 Jones (N. C.) 19,. the prosecutrix did not make complaint for two-weeks, and her statement was admitted in evidence by the state. The supreme court of North Carolina held it competent. In this case the trial court charged the jury that they might consider the lapse of time-between the commission of the crime and the complaint with other facts (naming them), in determining the credibility of the prosecutrix. This portion of the-charge was excepted to on the ground that the judge 'ought to have gone farther, and told the jury that her not making an earlier disclosure raised a presumption of falsehood, to be acted on by the jury in the absence of any proof to rebut it. I will quotefrom the opinion of the supreme court, not only in support of the point-now under discussion, but as bearing specially upon the question as to the instructions which this court holds in this case ought to be given. Says the court: “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 a law, but 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, but will instantly and voluntarily, 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; but 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 *193evidence, and the weight to which it is entitled, which is a matter for the jury.” In State v. De Wolf, 8 Conn. 93, the complaint was not made for a year, and in State v. Byrne, 47 Conn. 465, it was not made for a year and a half; yet in both cases the excuses given for the delay were held to justify the admission of the complaint in evidence as corroborative of the testimony of the woman alleged to have been ravished.
In the case at bar I think the prosecuting witness-gave satisfactory reasons for not disclosing this crime sooner.
III. I do not concur in the opinion that the evidence did not warrant the submission of the case to-the jury, but the record is too voluminous to go into details. Suffice it to say that I do not concur in the statement of the facts or the inferences sought to be drawn from the facts as given in the opinion of the court. I am firmly convinced after a careful study of the record that there was ample evidence to go to the jury, and I hold that the order made at the last term of this court, reversing and remanding this cause for new trial, was the proper order to make, and it is too late after the lapse of the term to set aside such order.
Black, J., concurs with me in these views.