Matthews v. State

• Decision Date: 17 March 1886
• Citation: 19 Neb. 330,27 N.W. 234
• Parties: MATTHEWS v. STATE.
• Court: Nebraska Supreme Court

19 Neb. 330

27 N.W. 234

MATTHEWS^*

v.STATE.

Supreme Court of Nebraska.

Filed March 17, 1886.

Error from Lancaster county.

J. L. Caldwell, for plaintiff.

The Attorney General, for the State.

MAXWELL, C. J.

The plaintiff was convicted of the crime of rape at the May term, 1885, of the district court of Lancaster county, and was sentenced to imprisonment in the penitentiary for three years. He now alleges error in the proceedings. The errors deemed material will be noticed in their order.

1. That the verdict is not sustained by the evidence. The sole testimony upon which the verdict rests is that of the prosecuting witness. She testifies that the offense was committed in March, 1881; that at that time, and for some years previously, she had resided in a shanty 10x12 feet square, in North Bluff precinct; that in 1881 her husband had been dead about two years, and that she had lived entirely alone; that her nearest neighbors were named Maher, and resided about 80 rods from her residence; that on the morning of the day on which the offense is alleged to have been committed the prisoner and one Taylor came to her residence, and shoveled the snow away from around the same, and carried in fuel, etc., and left; that in 10 or 15 minutes after Matthews and Taylor left --“about 10 minutes, I should think--not more than ten minutes; I had not made my dinner yet”--Matthews returned. “* * * He said: ‘Come and lay down on the bed.’ I said: ‘No, sir; I don't do that kind of business unless I was married to a man.’ He said it would not be long,--something like that. He just took my chair and wheeled it around,--didn't throw me off. He waited a few minutes to see if I was going. I didn't go, and he wheeled it around a second time. Still I didn't go, and he took hold of me and threw me off.” Prosecuting Attorney. “Go on and tell how he threw you on the bed. Answer.He took me around the waist and throwed me on the bed, and then kept me there until he got his satisfaction. State what he did. A. Till he had full connection with me. What did you do while on the bed? I got away from him once. Then he got me back the second time, he being strong and I being so weak,--wanting something to eat and fright together, I had not much strength. You all know that,--you ought to know it. I tried to get away the second time, but could not get away. He kept me till he got satisfaction. Had he connection with you? Yes; full connection. * * * State to the jury what you did in the way of resistance. If you did anything more, tell it. A. I did not do anything more, but just tried to get away from him all I could. Did you use your full strength? A. I used all the strength I had to get away from him, but could not.” This is all the testimony in the record in regard to the force alleged to have been used by the prisoner, or the resistance of the witness. She also testified that she was 58 years old at that time.

In Oleson v. State, 11 Neb. 276, S. C. 9 N. W. Rep. 38, it was held that when it appears that at the time the offense was alleged to have been committed the prosecutrix was conscious, and had possession of her natural, mental, and physical powers, and was not terrified by threats, or in such a position that resistance would be useless, it must appear that she resisted to the extent of her ability. In that case the offense was alleged to have been committed about 10 o'clock at night in the shanty in which the prosecutrix resided, in the city of Lincoln. Several neighbors resided within hearing distance, but she made no outcry. Her clothes were not torn, nor were there any marks of violence on her person to indicate a struggle. The court held that the evidence as to resistance was not sufficient to sustain the charge.

In People v. Dohring, 59 N. Y. 382, it is said: “The resistance must be up to the point of being overpowered by actual force, or of inability from loss of strength longer to resist, or from the number of persons attacking resistance must be dangerous or absolutely useless, or there must be duress or fear of death. Regina v. Hallett, 9 Car. & P. 748; Hawk. P. C. c. 41, § 2.” And on page 383 it is said: “But whatever the circumstances may be, there must be the greatest effort of which she is capable therein to foil the pursuer and preserve the sanctity of her person. And see, also, People v. Bransby, 32 N. Y. 525, 531, 540;People v. Hulse, 3 Hill, 309, 316, 317;Rex v. Lloyd, 7 Car. & P. 318; People v. Crosswell, 13 Mich. 427.”

In State v. Burgdorf, 53 Mo. 65, the offense was alleged to have been committed on a girl 16 years of age. That the prisoner had sexual intercourse with the girl seems to be conceded in the opinion, but there was no resistance nor outcry. It is said, (page 67:) “The crime under consideration can, in the language of one of the authorities, only be committed where there is on the part of her on whom the attempt is made the utmost reluctance and the utmost resistance. The passive policy, or a mere half-way case, will not do.”

In People v. Abbott, 19 Wend. 194, 195, it is said: “Any fact tending to the inference that there was not the utmost resistance and the utmost reluctance is always received. That there was not an immediate disclosure; that there was no outcry, though aid was at hand, and that known to the prosecutrix; that there are no indications of violence to the person,--are first among the circumstances of defense, not as conclusive, but as throwing distrust upon the assumption that there was a real absence of consent. 1 Hale, P. C. 633. A mixed case will not do; the connection must be absolutely against the will.” To the same effect are People v. Morrison, 1 Parker, 625; Woodin v. People, Id. 464; Taylor v. State, 50 Ga. 79;People v. Brown, 47 Cal. 447;Whitney v. State, 35 Ind. 506;People v. Benson, 6 Cal. 221.

In Connors v. State, 47 Wis. 523, S. C. 2 N. W. Rep. 1143, it was held error for the trial court not to press upon the attention of the jury the rule that voluntary submission by the woman while she has the power to resist, however reluctantly yielded, deprives the act of an essential element of rape.

In Whittaker v. State, 50 Wis. 518, S. C. 7 N. W. Rep. 431, it is said: “Any consent of the woman, however reluctant, is fatal to a conviction. The passive policy will not do. There must be no consent. There must be the utmost reluctance and resistance. State v. Burgdorf, 53 Mo. 67. It must appear that she used the utmost reluctance and the utmost resistance. Dan Moran v. People, 25 Mich. 356.” See, also, People v. Hulse, 3 Hill, 316;State v. Murphy, 6 Ala. 765;Pleasant v. State, 13 Ark. 360.

Many other cases to the same effect might be cited. The reason for this rule is apparent, as probably but comparatively few women would admit that they gave their assent to illicit intercourse. If the mere refusal to give express assent was sufficient to establish the crime of rape, a very large proportion of the cases of illicit intercourse, no doubt, could be brought under that head, and no doubt would be, particularly when the conduct of the parties was exposed, and such as to bring them into public observance. The law, therefore, as evidence that the act was committed against her will, requires the prosecutrix to use all the means in her power to prevent the consummation of the act. If the act is committed with force, and against her will, there is a great probability that some marks will be left upon her person or clothing, or both, as evidence of the struggle; and if she make complaint at the first opportunity, these facts tend to corroborate her testimony that the offense was committed by some one. If no marks are left upon the person or clothing, and no complaint is made at the first opportunity, a doubt is thrown upon the whole charge; and unless the testimony of the prosecutrix is corroborated on material points, where the accused testifies as a witness on his own behalf and denies the charge, the testimony of the prosecutrix alone is not sufficient to warrant a conviction.

Sir MATTHEW HALE, in Pleas of the Crown, volume 1, p. 633, (Ed. of 1778,) lays down rules for testing the...