At the July term, 1894, of the circuit court of Dunklin county, the defendant was jointly indicted with Coon Owen and Henry Justice, for. the rape of Lizzie Edwards.
The defendant in some way managed to escape trial until January, 1898. Such a delay in a public prosecution is inexcusable.
The transcript sent to this court does not contain the organization of the court, the impaneling of the grand jury or the return of the indictment nor the arraignment. All of these steps should .appear in the record sent to this court.
The indictment, leaving off the formal parts, is as follows :
“The grand jurors for the State of Missouri impaneled, sworn and charged to inquire and true presentment make within and for the body of the county of Dunklin, and State aforesaid, upon their oath present and charge that William J. Harris, Coon Owen and Henry Justice, on or about the 15th day of April, A. D. 1894, at the county of Dunklin, and State of Missouri, in and upon one Lizzie Edwards, a female about the age of fourteen years, unlawfully, violently and feloniously, did make an assault, and her, the said Lizzie Edwards, then and there unlawfully, forcibly and against her will, feloniously did ravish and carnally know; against the peace and dignity of the State.”
The defendant was convicted and sentenced to the penitentiary for ten years. The testimony, if believed by the jury was sufficient to sustain the verdict. ,The details .disclose a depravity so great that we are unwilling to spread them upon the official reports.
*61Tbe various exceptions urged in tbis court will be determined in their order.
I. The indictment is sufficient. It charges an unlawful and felonious assault, and otherwise meets every requirement of a charge of rape after a long line of approved precedent. [State v. Hammond, 77 Mo. 157; Archibald’s Crim. Prae. 999; Com v. Fogerty, 8 Gray 489; People v. Jackson, 3 Parker’s Crim. Rep. 391.]
It was entirely competent and proper t'o charge all three of the defendants jointly. It by no means follows that because each could not have been guilty of the sexual act at the same moment that two of them could not have been present as testified by the prosecutrix, aiding and abetting defendant by holding her down while defendant outraged her person.
II. No error was committed in permitting the witness Poster to testify to the conversation of defendant on Friday before the commission of the rape on Sunday morning. It was a distinct avowal of his purpose to commit the offense. No possible objection can be urged to the relevancy of this testimony.
III. We think, however, that the court erred in permitting the witness Joseph Hampton to testify to statements made to him by Coon Owen after the rape had been consummated, and Owen was returning alone from the home of the girl. The common criminal enterprise was no longer pending. It was fully completed and Owen’s statement was a meré narration of the past event in the absence of the other two actors. It was competent against himself alone. [1 Greenleaf (15 Ed.), sec. 111; State v. Melrose, 98 Mo. 594; State v. Hilderbrand, 105 Mo. 318; State v. Minton, 116 Mo. 605.]
IY. The objection to the testimony of W. II. Hampton to the effect that the prosecutrix was very sick at her stomach and vomiting for several hours after the rape is not tenable. It required no expert knowledge 'to testify to a fact visible *62and of such common understanding. It was simply a circumstance to which we can see no objection.
Y. There was no error in permitting the State to cross-examine Taylor as to his marital relations. According to his own evidence he had testified falsely that he was a single man and the prosecuting attorney simply compelled him to admit he had a wife living in Stoddard county with whom he was not living. The matter was largely within the discretion of the court and it is evident the discretion was not abused in this case.
YI. Instructions 2 and 3 for the State were mere abstractions which should have been omitted but they were not erroneous.
VII. The fifth instruction for the State is criticised because instead of declaring that the prosecutrix must have resisted the assault to the uttermost, the court instructed the jury that the rape must have been accomplished by force and she must have made such resistance as she 'was capable of making to prevent it, and did not consent thereto. Rape under our statute is The forcible ravishing of any woman of the age of fourteen years or upward.” While it is held that the woman must resist to her utmost, “the importance of resistance is simply to show two elements in the crime: Carnal knowledge by force by one of the parties, and non-consent thereto by the other.” [State v. Cunningham, 100 Mo. 382; State v. Shields, 45 Conn. 256.] When the jury were told that the woman must have made such resistance as she was capable of making to prevent the perpetration of the crime and must not have consented thereto it was but another way of telling them that she must have done her utmost to prevent its consummation. When a woman has used all the strength of which she is possessed to resist and in no way consents, and notwithstanding this the crime is consummated, she has done all the law requires. While *63tbe defendant’s instruction is tbe usual formula, that given by tbe State defines tbe crime denounced by tbe statute.
VIII. Tbe 7 th instruction for tbe State did not assume that which bad not been proved, to wit, that defendant bad paid tbe prosecutrix money after tbe commission of tbe rape. Constable Bradley, testified that on Sunday night after the offense bad been committed, be bad tbe warrant for defendant and after be bad arrested him, defendant voluntarily told him that be bad intercourse with prosecutrix and paid her fifty cents for it. Tbe court in this instruction advised tbe jnry that if tbe prosecutrix was ravished tbe subsequent receipt of money from defendant would not pnrge bis guilt. It was for tbe jury tó find these facts and if they did, still it was no defense, as was held in State v. Hammond, 77 Mo. 157.
IX. Tbe eighth instruction is in these words: “No. 8. Tbe Court instructs tbe jury that if they believe from tbe evidence that "William T. Harris, Coon Owen, Hugh Justice entered into a conspiracy to unlawfully and feloni-ously carnally know and ravish Lizzie Edwards, now Lizzie Tadlock, then tbe admissions and statements of Coon Owen, one of tbe conspirators and accomplice, made during tbe pendency of said conspiracy concerning tbe offense charged, or in explanation of acts done in pursuance of a concerted criminal purpose, should be received and considered by you in arriving at a verdict.” •
It is erroneous because tbe only admissions of said Owen were made after tbe common enterprise bad been completed and co-conspirators were no longer bound by bis statements.
X. Instruction No. 5 asked by defendant, was properly refused.
Tbe court bad already given an instruction as to the credibility of witnesses which fully advised tbe jury of its prerogative in weighing tbe evidence.
*64SI. Defendant’s instructions numbered 6 and 7 were also properly refused.
This court has recently condemned the principle which it announces. [State v. Marcks, 140 Mo. 656.]
As to the remarks of the prosecuting attorney, it is unnecessary to say more than that upon a new trial the court should require counsel to discuss the evidence and not permit the argument to degenerate in personal abuse.
Eor the errors noted the judgment is reversed and cause remanded for new trial in accordance with the views herein expressed.
Sherwood and Burgess, JJ., concur.