dissenting.
I am of the opinion that the evidence is not sufficient to sustain the conviction of the defendant, when tested by established rules defining the proof required to establish the crime of rape.
In Cascio v. State, 147 Neb. 1075, 25 N. W. 2d 897, we held: “In a prosecution for rape, competent evidence must show beyond a reasonable doubt not only that defendant committed the act charged, but that he did so under such circumstances that every element of the alleged offense existed, and where the *589evidence fails to meet that test, it is insufficient to support a conviction.”
We further held: “In the absence of sufficient proof of threats and fear, proof beyond a reasonable doubt of want of consent, that is, of actual force by the man with actual good-faith resistance thereto by the woman, is always essential to support a conviction.” There is no evidence here that the complaining witness yielded “because of fear caused by threats of immediate great bodily injury or death.” There were no threats.
We further held: “The degree of force required is relative, depending upon the particular circumstances, but in any such case it must be sufficient to subject and put the dissenting woman within the power of the man, and thus enable him to have carnal knowledge of her, notwithstanding good-faith resistance on her part. In that connection, whether carnal knowledge was forcibly and against her. will or with her consent, is ordinarily indicated by resistance or lack of it by the woman.” There is evidence of the use of force here, but the last use of force occurred when the complaining witness was placed face down on her bed. She testified to no act of force thereafter.
We further held: “While the degree of resistance required is also- relative, depending upon the particular circumstances, the 'general rule is that a mentally competent woman must in good faith resist to the utmost with the most vehement exercise of every physical means or faculty naturally within her power to prevent carnal knowledge, and. she must persist in such resistance as long as she has the power to do so until the offense is consummated.” In Selvage v. State, ante p. 409, 27 N. W. 2d 636, we held: “To constitute the crime of forcible rape upon a woman of the age of 18 years or upwards, possessed of her natural physical and mental powers and not terrified by threats or force, she must resist to the extent of her ability and persist in such actual resistance, by every means at *590her command, until the act is consummated.” There is no evidence here of any acts of resistance on the part of the complaining witness from the beginning to the end of the event. As was said in Brown v. State, 127 Wis. 193, 106 N. W. 536 (cited with ápproval in the Cascio case): “Resistance is opposing force to force (Bouvier), not retreating from force.” In Vaughn v. State, 78 Neb. 317, 110 N. W. 992, we stated that under peculiar circumstances a less degree of resistance may be sufficient. See Hammond v. State, 39 Neb. 252, 58 N. W. 92, and Thompson v. State, 44 Neb. 366, 62 N. W. 1060, for illustrations of peculiar circumstances calling for an application of the exception. It is not claimed that there are any peculiar circumstances here to make the general rule inapplicable.
We further held in the Cascio case: “In determining the sufficiency of the evidence in the case at bar, we are required to observe the rule that mere general conclusions of the prosecutrix, without relating the very threats and acts justifying submission because of fear or constituting the required actual force and resistance, -are of themselves insufficient to sustain a conviction of the accused.” Here the complaining witness testified to the conclusions that the act was against her will; that she could not help it; that she did not have strength; that she resisted to the full extent of her strength; and that it would have done no good to resist. These assertions are both of resistance and of lack of resistance. Clearly under the rule just cited, they are insufficient to sustain the conviction. Mathews v. State, 19 Neb. 330, 27 N. W. 234.
In Oleson v. State, 11 Neb. 276, 9 N. W. 38, we- quoted with approval this rule: “The prosecutrix, if she was the weaker party, was bound to resist to the utmost. Nature had given her hands and feet with which she could kick and strike, teeth to bite, and a voice to cry out; all these should have been put in requisition in defense of her chastity.” (In Brown v. State, supra, *591the court added “pelvic muscles” to the list.) We applied this test in Vaughn v. State, supra. The complaining witness here testified that 'she did not use her legs, arms, or any other ordinary means of reprisal. The witness does testify that she screamed. Yet, her evidence is replete with admissions of opportunity to scream before any act of intercourse, and she testified that she did not because it would do no good.
The complaining witness testified that when the defendant entered her home she recognized him, called him by name, and asked him what he wanted. During the actual acts of intercourse, the witness and defendant visited about her age (and she refused to tell him, requiring him to guess), and about his mother’s name. He asked for cigarettes; she asked him not to smoke on her bed. She was thirsty and got up partly from the bed, took a glass of water from a window sill, drank it, and lay down again beside defendant. Between the two acts the defendant lay still on the- bed and she remained beside him. After the defendant left the witness’ home, she got up, turned on the light, noted the time, locked the doors, bandaged the scratch on her heel, went back to bed and apparently to sleep until morning. The next morning she saw two of her lady neighbors, one of them was in her home. She made no complaint to them and there is no evidence of anything unusual in her appearance or conduct at the time. Just before noon she went to the doctor and complained to him, but on cross-examination testified that she called on him because she feared a venereal disease. Thereafter followed repeated discussions of the event with relatives and officers. The prosecution followed.
Take an admission or proof of the sexual act, add to it the natural revulsion against the crime of rape, together with relative and community hysteria, and you have the ingredients by which juries are persuaded to return verdicts of guilty, as witness the verdicts in *592this, the Cascio, and Selvage cases. It is the duty of trial courts to require proof meeting the tests of law before submitting these cases to the emotions of juries. It is the duty of appellate courts to set aside convictions where the evidence does not meet these tests. Heretofore we have done so in many cases down to and including the Cascio case and more recently the Selvage case.
This defendant may or may not have been guilty of some offense against the laws of this state. However that may be, the evidence falls far short of meeting the tests or establishing the elements of the crime of rape. I see no distinguishing difference in the factual situation in the Cascio and Selvage cases and the instant case.
Carter, J., joins in this dissent.