This conviction is for an assault with intent to commit rape.
The only issue upon the trial to be determined by the jury was consent vel non. If what the prosecutrix swore was the truth, appellant used the force required in such cases to accomplish his purpose. She is shown, however, not only to have sworn falsely regarding material matters, but her conduct, when they were discovered by Dora Cook, upon the hypothesis of rape, or assault to rape, was unnatural and inconsistent.
The issue being force or consent—force shown by the evidence of the prosecutrix, and consent strongly presented by the attending circumstances—we are of opinion that a new trial should have been granted to obtain the newly discovered evidence shown in the affidavit of Barbara and Alice Brown, Kellie Brown and Eliza Smith.
Barbara and Alice Brown swore “that, a few minutes after the alleged assault, the prosecutrix came to their house and told them that Miles Reed had got on top of her, and done it to her, and that Miles Reed gave her ten cents to let him do it; and that she showed them the ten cents, and said she was going up to town and buy some candy with it; that she would give them some of it; that she saw some women coming towards them and thought it was her mother and ran off, and when she found that it was not her mother she came back.” Barbara relates the matter about the prosecutrix running off when she thought she saw her mother coming,
Kellie Brown saw the ten cents, and places the prosecutrix at her house with the children Barbara and Alice at the time sworn to by them.
The judgment is reversed and the cause remanded.
Reversed and remanded.