(dissenting). Having concurred in the original opinion which was rendered on September 2, 1953, and now dissenting to the revised opinion, I feel that I should briefly state the reasons for such dissent. The original opinion affirming the sentence was based largely upon evidence which had been stricken by the court. Our attention was called to this in the petition for rehearing, as pointed out in the opinion hereinabove set forth by Judge Powell. I concur with the majority opinion in conformity to the decisions therein cited that the evidence which was stricken from the consideration of the jury may not be considered by the appellate court in determining the sufficiency of the evidence to sustain the conviction, even though the members of the appellate court might feel that the court acted erroneously in striking such evidence from the consideration of the jury. The court struck from the consideration of the jury the evidence of submission through fear engendered by threats because, such was not charged in the information.
With the elimination of the stricken evidence, there does not appear to be any substantial, competent evidence to show that the prosecuting witness resisted and that her resistance was overcome by force and violence.
The state relied for a conviction against both Goff and Kidd on separate acts of sexual intercourse, each had with the prosecutrix. These defendants should have been charged in separate informations and tried separately as each act of sexual intercourse committed by these two individuals were distinct offenses.
Before a conviction can be upheld, the state’s evidence must establish beyond a reasonable doubt that the prosecutrix resisted, but her resistance was overcome by force and violence as defined under the fourth subdivision of the statute. 21 O.S. 1951 § 1111.
*427I concur in the statement of the majority that the principle of resistance to the uttermost is obsolete and is not followed in the latest decisions of this court. However, it is equally well settled by the decisions of this court that there must be some real resistance in good faith and not a mere resistance or sham, and such resistance should persist until the offense is consummated. That resistance or objection by mere words is not enough; the resistance must be by acts, and must be reasonably proportionate to the strength and opportunities of the woman. If there is a lack of resistance, there is small occasion to use force. Gullatt v. State, 80 Okla. Cr. 208, 158 P. 2d 353; Johnson v. State, 52 Okla. Cr. 397, 5 P. 2d 772; Epley v. State, 94 Okla. Cr. 308, 235 P. 2d 711.
With these principles of law established, I here present a summary of the evidence against each of the accused; first, as to George Goff. Goff and the prosecuting witness had been acquainted for three or more years and had dated. They were of the same approximate age. The prosecutrix was a physically strong, able-bodied young woman, being employed as a janitress. The prosecutrix testified that Goff pushed her into the back seat of the car, jerked off her half-slip, and had sexual intercourse with her without removing her panties. In response to the question as to what she did to resist, her answer was, “Well, sir, I just begged and I pleaded. I didn’t know much I could do.”
She testified that the act was painful to her and that she told Goff that it was painful and “Pat” Goff told her “to lay still”. At no time in her testimony does she make any statement of any act that she did to show resistance. Not only was there not resistance to the uttermost, there just was not any resistance. As I view the record, the most favorable thing that can be said pertaining to her act with Goff was that she was a reluctant participant.
Next consider the evidence as to Kidd. Kidd was not present but was away in the darkness somewhere during all of the acts allegedly committed by Goff. Her complete testimony concerning Kidd’s force and her resistance is set forth in the following questions and answers:
“Q. After Pat Goff accomplished this act, then what was the next thing happened? A. Well, he got out of the car and went around the back and A. J. Kidd come in and I had sat up, and he told me to lay down, that he wasn't gonna hurt me and he told me not to tell Pat Goff, and he had a sexual intercourse too. Q. Did you object to him? A. As well as I could, sir.”
Did Kidd force her to commit the act? She says that he told her to lay down, that he was not going to hurt her. Such statement sounds to me more like an attempt to use persuasion to accomplish the act than the use of force and violence, which the state alleges was used. Not one act of resistance on her part is related as to Kidd, and so far as the defendant Kidd is concerned, there is absolutely a complete lack of any substantial evidence to convict him.
It appears to me that the majority opinion is still giving effect to the evidence of fear engendered by alleged threats which evidence was stricken by the court. Although the majority state in their opinion that they are not giving consideration to such evidence, it is again set forth in the opinion and apparently is affecting their decision. The stricken evidence and the fact that the proof of the state shows the prosecutrix was a virgin is the basis for the affirmance of the judgment. It is regrettable that a virgin was violated, and I do not condone nor approve the acts of the defendants, but under the statute and the decisions of this court under which the prosecution was instituted, it is contemplated that even an adult virgin must show some active resistance before a conviction should be sustained. A person may be a virgin solely because no opportunity ever was presented to be otherwise.
*428But a virgin must resist the assault. Under the statute there is no difference in the penalty from having sexual intercourse with a virgin or with a prostitute, where there is resistance and the act is consummated by the use of force and violence. The fact of virginity is important and a factor to be considered, but where her actions at the time of the alleged assault, coupled with her failure to make an outcry at the first opportunity, repudiates any idea of resistance or the overcoming of resistance by the use of force and violence, then virginity loses much of its significance in determining the guilt or innocence of the one accused in the assault.
It has been repeatedly stated by decisions of this court that it is the natural impulse of every virtuous female to make complaint of an outrage at the first opportunity and where this is not done there is a strong presumption against the truth of the accusation. Gullatt v. State, supra. Not only did the prosecutrix fail to make an outcry at the first opportunity after she arrived home, but she testified that she would not have told her mother what had occurred if her mother had not awakened and scolded her for being out so late. In this connection the prosecutrix testified that the defendants drove up to the front of her home and Pat Goff got out of the car with her. Instead of making an outcry the prosecutrix went to the back door so she could enter without attracting attention.
Dr. Beddoe, who examined the prosecutrix the night of the alleged attack, testified at the preliminary examination concerning the girl’s appearance when he examined her, approximately two hours after the alleged attack, as follows:
“Q. What was the girl’s mental attitude, and physical attitude, if any? A. She seemed not in any way hysterical. She was not hysterical or unduly upset when I examined her. Q. She was not upset or hysterical at all? A. No.’’
■ Keeping in mind that this is a prosecution for rape by the use of force and violence overcoming the resistance of a woman, attention is directed to the fact that there was no great disproportion in the ages or sizes of the prosecutrix and the accused so far as shown by the record. We have had a great number of rape cases appealed to this court in which learned doctors have testified, and based on this abundance of authority, it seems to be unquestioned that a female not wishing to be raped is equipped to interpose most effective obstacles by means of hands and limbs and pelvic muscles. Most medical writers state that these obstacles are practically insuperable in the absence of more than the usual relative disproportion of age and strength between man and woman.
Summarizing, there is a lack of evidence of any force overcoming resistance. All that prosecutrix did was beg and plead and on the one occasion when she complained of the pain because of the act, her boy-friend Goff told her to lay still and she still laid.
I am of the opinion that the proper disposition of this case calls for it to be reversed and remanded for a new trial with instructions to the county attorney to amend the information by alleging that prosecutrix was prevented from resistance by threats of immediate and great bodily harm accompanied by apparent power of execution.