Tom Loyd was tried under an indictment charging him with the offense of rape, alleged to-have been committed upon Lilia Mathis. The jury returned a verdict of guilty, and the defendant’s motion for a new trial was overruled.
1. Error is assigned upon the ruling of the court by which one George Griffin was permitted to testify, over the objection of defendant’s counsel, that he saw certain children of Lilia Mathis, the prosecutrix, on the night of the commission of the alleged crime. The ground of the objection to the testimony was that it was not relevant, that it was hearsay, and that what the woman’s children did in no way corroborated her testimony. The evidence was not irrelevant, but was relevant, material, and admissible. The prosecutrix had testified that the accused and
2. A witness for the State was permitted to testify, over objection, that the general moral character of the prosecutrix in the community was good. This was objected to upon the ground that the State could not introduce evidence of the prosecutrix’s character when it had not been attacked. A sufficient reply to this objection is that the prosecutrix’s good character had been attacked by defendant. In his statement the defendant recited to the-jury the circumstances under which the prosecutrix moved to his place, and stated that on one occasion, although she had gotten very little money from him, she came to his store and made purchases of a considerable amount, and when he protested she replied that she had plenty of money, and pulled ,out a twenty-dollar bill. Further in his statement the defendant said: “Thornton O’Neal and Searboro Mann [the former a negro, and possibly the latter also] come to my house and bought some stuff out of the commissary. They left my house and went towards old Lilia’s [the prosecutrix]. I did not pay any attention to them; it was Christmas, and I knew negroes were going to frolic and have a big time Christmas. Christmas morning old Thornton come back to my house about half drunk,
3. Where the court in his charge to the jury instructed them “That to constitute the crime of rape carnal knowledge must be accomplished by the use of force,” it was not error for the court to charge, in further instructing the jury as to the elements of the crime of rape, that “there must be carnal knowledge of the female, that is, the organ of the male must penetrate the organ of the female. Slight penetration, however, is sufficient. The mere entering of the vulva of the female organ by the penis of the male would be sufficient penetration.” This charge was not
4. Error is assigned upon the following charge of the court: “Secondly, to constitute the crime of rape, carnal knowledge must be accomplished by the use of force. The mere amount of force ordinarily involved in mere sexual intercourse would not be sufficient to constitute the crime of rape. It must be shown that the amount of force used was such as might reasonably be supposed to be sufficient to overcome the strength of the particular female alleged to have been raped. If the alleged sexual intercourse was not accomplished by the use of such force as might be reasonably supposed to be sufficient under the circumstances then surrounding the parties, to overcome the strength of the female alleged to have been raped, the alleged offense would not be the offense of rape.” Counsel for plaintiff in error contend that this charge was prejudicial and argumentative, and calculated to mislead the jury; that the jury, before they coidd convict the defendant of the offense of rape, had to believe beyond a reasonable doubt that the defendant had carnal knowledge of the female forcibly and against her will, and that the use of the expression “such as might reasonably be supposed to be sufficient to overcome the strength of the particular female alleged to have been raped,” was a qualification of the idea of force which is an element of the crime of rape, and the qualification is unauthorized by the statute. The charge is not argumentative, and the expression “ reasonably sufficient ” could hardly have had the effect of misleading the jury or qualifying the idea of force necessarily existent in the crime of rape. Or, if it tended to have this effect, that was corrected in another part of the charge, which is also set forth in another ground of the motion, and which is as follows: “ Thirdly, it must be shown that the alleged carnal knowledge of the female was accomplished against her will. It must not only appear that she did not expressly consent to the alleged intercourse, but it should appear that she resisted the alleged act of sexual intercourse in every possible manner, under the circumstances, considering the age, intelligence, condition, and strength of the parties, and the place and surroundings of the alleged tragedy, or that resistance was prevented by violence, or overcome by fear, If the alleged act of
5. The charge contained in the excerpt last set forth above is also excepted to upon the ground that there was no evidence to authorize the charge; that there was no evidence that the woman resisted; that the record shows that she did not resist, that she made no outcry, but practically consented to the intercourse; that there is no evidence that the defendant used violence to carry out his purpose. The unequivocal testimony of the prosecutrix answers this criticism upon the charge. She said, in part: “ I was at my house that night [the night upon which the alleged crime was committed]. My children were there with me. Nobody else till Mr. Tom Loyd and his brother come down there. They come at first dark. . . He said if I would milk the cows I could have the milk, and I went up there and milked the cows. He was right out there when I milked them. I went back home, and Mr. Tom and his brother Joe came to my house. I had just stepped out on the. porch to get some wood. My girl was cooking, and I went out to get the wood and she ran out there too. She stepped in the house when Mr. Tom Loyd walked up and caught hold of me; he caught hold of my arm right along here [indicating]. When he caught hold of my arm I said, ‘ Mr. Tom Loyd, I don’t do nothing like this.’ He said, ‘Yes, but you are going to do it to-night though,’ and he took me and was carrying me off. . . Mr. Joe Loyd had hold of my arm, talking about beating me; when I went out of the yard both of them had hold of my arm this way [indicating]. I could not do anything; if I had known they were coming I would have run. They carried me about 75 yards down in a little bottom in the woods from my house. I was standing'up there wringing my hands that way [indicating], I was scared and was crying. Mr. Tom Loyd said, ‘ There is no use. of your crying; you might just as well come on, as I am going to have some of that.’ He took and laid me down just like you take your coat there. I first held my feet together and he was talking about knocking me in the head. . . I did not fight him off when he did that, because I was scared. He said he would knock me in the head with his pistol. I don’t know where Mr. Joe Loyd was at that time; he had stepped off somewhere. I let him
6. On the subject of the necessity of corroboration of the testimony of the prosecutrix, the court charged the jury as follows: “ It is a general rule of law that a person should not be convicted of rape on the testimony of the alleged victim alone, unless there are circumstances proven which tend to corroborate her testimony to the satisfaction of the jury; and the degree of credit to be given her testimony would depend more or less upon the concurrence of such circumstances.with her testimony.” This charge, if erroneous at all, was not hurtful to the defendant.
7. The court also charged, that, “In determining the credibility of the female alleged to have been ravished, the jury may consider all the facts and circumstances of the case, her conduct at and subsequent to the alleged offense. The jury may consider whether she is of good fame or bad repute, whether after, the alleged act she presently discovered the alleged offense, showed circumstances or signs of injury, or whether she concealed the alleged injury for any considerable length of time after she had an opportunity to complain, and all such similar acts and circumstances.” This is excepted to on the-ground that it is misleading and unatithorized by the evidence in the ease. And here again we disagree with counsel for the plaintiff in error. Sufficient evidence has already been set forth to show the circumstances under which the crime charged was committed. It appears from the evidence that the woman’s little children fled in the darkness from her house. One of her neighbors to whose house four of them had gone testified as follows: “ On last Christmas eve night [the night of the alleged crime] I lived about three quarters of a mile from the place on Tom Loyd’s farm where Lilia Mathis lived. On that night I was at home, sitting down with
8-10. No elaboration of the rulings made in headnotes 8, 9, and 10 is necessary.
Judgment affirmed.