Matthews v. State

• Decision Date: 17 March 1886
• Citation: 27 N.W. 234,19 Neb. 330
• Parties: PETER MATHEWS, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

27 N.W. 234

19 Neb. 330

PETER MATHEWS, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

March 17, 1886

ERROR to the district court of Lancaster county. Tried below before POUND, J.

REVERSED AND REMANDED.

J. L Caldwell, for plaintiff in error.

William Leese, Attorney General, for defendant in error.

OPINION

MAXWELL, CH. 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.

First 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 10 by 12 feet square in North Bluff precinct; that in 1881 her husband had been dead about two years, and that she lived entirely alone; that her nearest neighbors were named Maher, and resided about eighty 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 then left; that in ten or fifteen minutes after Mathews and Taylor left--"about ten minutes, I should think--not more than ten minutes--I had not made my dinner yet--Mathews 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 round the 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.

A. He took me round the waist and throwed me on the bed, and then kept me there till he got his satisfaction.

Q. State what he did?

A. Till he had full connection with me.

Q. What did you do while on the bed?

A. 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 his satisfaction.

Q. Had he connection with you?

A. Yes, full connection.

Q. State to the jury what you did in the way of resisting--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.

Q. 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 testifies that she was 58 years old at that time.

In Oleson v. State, 11 Neb. 276, 9 N.W. 38, it was held that where 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. 374, 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. Reg. v. Hallett, 9 Car. & P. 748; 1 Hawk., P. C., chap. 4, § 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. This is the extent of her ability." And see The People v. Bransby, 32 N.Y. 525, 531, 540. The People v. Hulse,c 3 Hill 309, 316, 317. Rex v. Lloyd, 7 Car. & P. 318. The People v. Crosswell, 13 Mich. 427, 433.

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. Abbot, 19 Wend. 194-195, it is said: "Any fact tending to the inference that there was not the utmost reluctance and the utmost resistance 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 put among the circumstances of defense, not as conclusive, but as throwing distrust upon the assumption that there was a real absence of assent. 1 Hale, P. C., 633. A mixed case will not do: the connection must be absolutely against the will." To the same effect are The People v. Morrison, 1 Park. Cr. R. 625. Woodin v. The People, 1 Park. Cr. R. 464. Taylor v. State, 50 Geo., 79. People v. Brown, 47 Cal. 447. Whitney v. State, 35 Ind. 503. People v. Benson, 6 Cal. 221.

In Conners v. State, 47 Wis. 523, 2 N.W. 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, 7 N.W. 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. 65. "It must appear that she showed the utmost reluctance and used the utmost resistance." Don Moran v. The People, 25 Mich. 356. See also People v. Hulse, 3 Hill 309. State v. Murphy, 6 Ala. 765. Pleasant v. State, 8 Engl. 360.

Many other cases to the same effect could 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 where the conduct of the parties was exposed and such as to bring them into public odium. 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, vol. 1, page 633 (Ed. of 1778), lays down rules for testing the credibility of the principal witnesses, which are as applicable to-day in trials of this character as when announced. He says (page 635) "It is true that rape is a most detestable crime and therefore ought severely and impartially to be punished with death, but it must be remembered that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent." He then mentions...