Huber v. The State
| Decision Date | 25 November 1890 |
| Docket Number | 15,411 |
| Citation | 25 N.E. 904,126 Ind. 185 |
| Parties | Huber v. The State |
| Court | Indiana Supreme Court |
From the Tippecanoe Circuit Court.
Judgment reversed, with instructions to issue the proper order for the return of the appellant.
R. P DeHart and W. C. Daly, for appellant.
L. T Michener, Attorney General, and G. P. Haywood, Prosecuting Attorney, for the State.
The appellant was adjudged guilty of the crime of rape, and from that judgment prosecutes this appeal. There is evidence making it clear, beyond doubt, that the sexual intercourse charged in the indictment took place; but, while there is evidence warranting the conclusion that the act was forcibly committed, still the evidence is not of such a character as will justify us in sustaining the judgment, notwithstanding the intervention of erroneous rulings upon questions of evidence. In order to make out the crime of rape it is essential that the State should show, beyond a reasonable doubt, that there was actual resistance and opposition on the part of the woman, or that opposition and resistance were overcome by violence, or fear. Resistance, or opposition, 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. Where, however, fear or violence overcomes resistance, a different rule applies. Anderson v. State, 104 Ind. 467, 4 N.E. 63; People v. Dohring, 59 N.Y. 374; Strang v. People, 24 Mich. 1; Pollard v. State, 2 Iowa 567. The rule does not require that the woman shall do more than her age strength, and the attendant circumstances make it reasonable for her to do in order to manifest her opposition; but this she must do or the offence is not rape. Statements in the case of Whitney v. State, 35 Ind. 503 which indicate, or assert, a doctrine opposed to that stated are not defensible, and can not be approved, for a stronger rule against the prosecution is there laid down than reason or authority warrants. The general rule stated does not apply where the female has not attained an age capable of consenting; nor does it apply where the woman is insane. Pomeroy v. State, 94 Ind. 96. It is no doubt proper to consider the age and strength of the woman, and her means and opportunities for resistance; but where she is not of unsound mind, and has reached the age fixed by law as that at which there is capacity to consent, the crime is not made out unless it appears that there was actual resistance, or that resistance was prevented by violence, or restrained by fear. We may, as citizens, regret that the age of consent has not been fixed at more than twelve years; but sincerely as we may regret that a greater age has not been fixed, we can not, as a court, do otherwise than obey the law as it has been enacted by the law-making power. The utmost that we can do is to assign the age of the female such weight as it is entitled to receive as a circumstance tending to show that such resistance as the law requires was made; but assigning to the age of the prosecutrix all the weight we can possibly do, consistent with duty, we are still unable to affirm that errors occurring on the trial may be disregarded. We do not deem it necessary to set forth the evidence, nor are we inclined to do so; it is enough to say, that if the only question before us was as to the sufficiency of the evidence to sustain the verdict we should decline to interfere; but we can not hold that the evidence is so clear as to justify us in sustaining the conviction, despite the fact that errors of law were committed...
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