The evidence shows beyond controversy that the prosecutrix, Ohloe Rhodes, while traveling along the highway, in company with her sister and another girl, was approached by the defendant, a stranger to all of them, knd was ashed by him to be allowed to have sexual intercourse with her; that she promptly refused him; and that thereupon he assaulted her, threw her down in the road, and attempted to accomplish his purpose, and desisted only when the other girls approached, and the prosecutrix’s resistance was such as to render it evident that his efforts would be ineffectual.
2._: not evídeuce.d by The defendant asked an instruction in these words: “If you find from the evidence that the prosecutrix, at the time of the alleged assault, by her conduct or manner, invited, rather than repelled, the advances and acts, if any, of the defendant, and if you find that by her acts and conduct she led the defendant to suppose that she was willing that he should take hold of her, then such act of the defendant would not amount to an assault.” The court refused this instruction, and the defendant complains of the refusal.
3. assault torape?invitins assault. evidence. Without stopping to inquire in regard to the correctness of the instruction, it is sufficient to say that we fail to find a particle of evidence tending to show that the prosecutrix’s acts were calculated to invite the defendant’s advances, or that she was willing that he should touch her person. The defendant relies upon evidence showing that the prosecutrix was walking- slowly along the road. But the fact is , , . .. . that the other girls had stopped by the way to pick plums and crab-apples, and the prosecutrix did not wish to part from their company, and yet she did not wish to stop. Besides, if she had walked slowly without any reason for so
The defendant relies'upon evidence tending to show that he approached her with his pantaloons torn, and his private parts exposed, and that she talked to him, and did not scream nor run. But the only talk between them, so far as the evidence shows, consisted of his infamous proposition and her prompt refusal. That she neither screamed nor ran is no evidence against her. She had to protect herself and her young companions, and this she might well have thought that she could do best by maintaining her ground, and not by separating herself, and expending her strength in flight. If the defendant took encouragement from such fact, he must have been utterly destitute of any proper conception of female virtue.
4. bvideitce : tiiing”iaise niie nót'Iip-11 pUcdbie. The defendant asked an instruction in these words: “If you believe that any witness examined in this case has knowaiQd intentionally testified falsely to any material matter, all of such witness’ testimony may be disregarded by you.” The court refused this instruction, and the defendant complains of the refusal. He contends that the prosecutrix knowingly testified falsely to material matters, and that the jury would have been justified in disregarding all her testimony; but we do not think this is so. We have examined her testimony with great care, and we have to say that it appears to us entirely credible. There is, to be sure, a slight'discrepancy between her testimony and that of the others in some unimportant particulars, but it only discloses a little difference of observation or memory, or both, and does not tend in any degree to impeach her honesty. We think that there was no occasion to give the instruction, and that it would have been wrong to do so.
7. P11ACTIOI5: disagreement den'c"1- ¶"- struction. The jury, having been out about six hours, and having failed tó agree, were called into court, and reported that they differed upon a question of fact as to whether the girls, after they left the defendant, and proceeded on their way to their destination, which was the town of Plymouth, met one Allen, a neighbor, going to Plymouth, or saw him when they were returning. The prosecutrix had testified that they met him on their way to Plymouth, and one of the other girls had testified that they saw him when they were returning. The conflict in the evidence, if it could be called such, was seized upon by the jury as a reason for disagreeing as to the defendant’s guilt. But whether the girls were outward or homeward bound when they saw Allen was not a question of any importance, nor is it claimed that it was. What the defendant’s counsel attach importance to is the conflict. They had doubtless magnified this conflict before the jury. They assume, even in this court, that the jury might have found that the prosecutrix told a lie about it; and, if they so found, that they would have been justified in disbelieving her generally. The court, having called in the jury, and ascertained that they were disagreeing over such an insignificant matter, gave them an instruction which is as follows: “Thefact that witnesses disagree in minor points in their, recollection and
We ought, perhaps, in this connection, to say that the defendant’s counsel insist in argument that it was very material whether the girl met Allen or not. The point which they make is that Allen was an old neighbor, and the prosecutrix did not disclose to him tbe fact that she bad just before been assaulted. But tbe defendant has the full advantage of that fact. It is undisputed that the girls saw Allen going or returning, and it it equally undisputed that the prosecutrix spoke to him, and learned from him the defendant’s name, but reserved the disclosure of the fact of the assault, as a girl of delicate feelings might be expected to do, until she saw her parents. All this is mixed in the counsel’s argument against the instruction, but it is manifest that there is no logical connection.
ivitii intent to rape: evi* dence: offer mise. The defendant offered to show that the prosecutrix and her father offered, after the defendant’s arrest, to withdraw the charge if he would pay a hundred dollars. The court refused to admit the evidence, and the defendant complains of the refusal. This evidence must have been offered upon the theory that, if admitted, it would have affected the credibility of the prosecutrix. If we could see any ground for supposing that the charge had been wrongly made as a ground for extorting money, we might think that the evidence should have been admitted, but we see nothing indicating that it was made for such purpose, and we think that the court rightly excluded the evidence.
It is insisted that the verdict is not supported by the evidence, but we do not see how the jury could properly have reached any other conclusion.
10._. plSment. The defendant was sentenced to imprisonment for four years. He insists that the punishment is excessive. But, in our opinion, he should deem himself fortunate in escaping, with so light a punishment. He assaulted a girl who was a stranger to him while prudently walking along a public road, and we are unable to discover a single mitigating circumstance.
Affirmed.