dissenting.
I concur in the court’s judgment of reversal. I would go further and dismiss as we did in the recent cases of Whomble v. State, 143 Neb. 667, 10 N. W. 2d 627; Cascio v. State, 147 Neb. 1075, 25 N. W. 2d 897; and Selvage v. State, 148 Neb. 409, 27 N. W. 2d 636.
I trust we have not yet reached the point in our criminal law where it is necessary only to accuse in order to convict. This defendant may or may not have been guilty of some offense against the laws of this state. As I see it, the evidence of the state falls far short of meeting the tests or establishing the elements of the crime charged. This dissent goes to defendant’s contention that the evidence of the state is insufficient to support a verdict of guilty. This question was raised at the end of the state’s case-in-chief and at the close of all the evidence.
I accept the statement of the law as made by the court that “Force by accused, as distinguished from mere preparations, requests, and solicitations which are insufficient, and appropriate • resistance thereto by prosecutrix, in cases wherein consent is an issue, are essential constituent parts of the offense, therefore consent or failure to resist when opportunity appears is an absolute *759defense in such cases and the jury should be so instructed” and “Resistance by prosecutrix must be in good faith, to the utmost or limit of her ability, 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.”
The complaint is based upon section 28-409, R. S. 1943, providing that “Whoever assaults another with intent to commit a murder, rape, sodomy or robbery upon the person so assaulted, shall be imprisoned in the penitentiary not more than fifteen nor less than two years.”
By the provisions of section 28-408, R. S. 1943, rape is defined as follows: “Whoever shall have carnal knowledge. of any other woman, or female child, than his daughter or sister, as aforesaid, forcibly and against her will; * * * shall be deemed guilty of rape, * * *.”
Under this charge the state was required to establish by competent evidence beyond a reasonable doubt that the defendant assaulted the prosecutrix with intent, forcibly and against her will, to rape her. Hall v. State, 40 Neb. 320, 58 N. W. 929; Garrison v. The People, 6 Neb. 274. Willingness or lack of it is a condition or state of mind. Consent is an evidence of willingness. Resistance is an evidence of unwillingness. State v. Schwab, 109 Ohio St. 532, 143 N. E. 29. The resistance must not be a pretense but must be in good faith and real. Rahke v. State, 168 Ind. 615, 81 N. E. 584. See, also, Selvage v. State, supra.
As to available means to a female of resistance we have said that nature has given her hands and feet with which she can strike and kick, teeth to bite, and a voice to cry out. Oleson v. The State, 11 Neb. 276, 9 N. W. 38, 38 Am. R. 366.
The failure to make outcry where others are in the vicinity and outcry would have been available should be considered in determining the question of consent or *760nonconsent. People v. Rich, 237 Mich. 481, 212 N. W. 105.
In Cascio v. State, supra, we held: “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,” and “* * * it must be the rule in such cases that where the testimony of the prosecutrix as to the particular acts allegedly constituting the offense may all be true and still the act not have been against her will, or if her testimony in that regard is so inconsistent, contradictory, improbable, or incredible as to be self-destructive, and the corroborating evidence is of a doubtful character or wholly lacking in probative force or value, a judgment of conviction will be set aside for want of sufficient evidence to sustain it.”
In the Whomble, Cascio, and Selvage cases we held the evidence insufficient to sustain a conviction and dismissed the action. The evidence in this case is even less sufficient than the evidence in those cases.
The testimony of the prosecutrix here consists largely of “mere general conclusions” and is not a statement of the “very threats and acts justifying submission because of fear or constituting the required force and resistance” and is insufficient under the rule announced in the Cascio case. Her testimony is “so inconsistent, contradictory, improbable, or incredible as to be self-destructive” under the rule stated in the Cascio case. The corroborative evidence of the witness Gerald Donoghue is not only of “doubtful character or wholly lacking in probative force or value,” as stated in the Cascio case, but here the witness either fails to corroborate the prosecutrix or contradicts her on material evidentiary matters.
The evidence of the county attorney purporting to state admissions made by the' defendant finally resolved *761itself to be a recital of his own phraseology and interpretation of what the boys told him.
I do not find in the evidence the sustaining strength for the general conclusions which the court holds the jury could have resolved from it.
In view of the conclusions of the prosecutrix in her testimony and that of the county attorney as to screaming, resistance, fighting, etc., it is important to point out what the evidence does not show. There is no evidence of threats or fear. While the county attorney testified that defendant told him the prosecutrix was “screaming” yet the prosecutrix positively stated that at no time did she cry out. There is no evidence of a mark, scratch, bruise or abrasion on any part of the body of the prosecutrix. There is no evidence of an examination by a physician and accordingly no evidence as to what such an examination might have revealed. There is no evidence of bruises, scratches or marks on the bodies of the boys such as might appear if there had been hitting, scratching, kicking or biting.
I would hold the state’s evidence insufficient to sustain a conviction, and dismiss.