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Felton v. The State.

with her, against her will, after which, upon her attempting to arise, he profanely commands her to lay still and let the other men have intercourse with her, and she is then taken to a lumber yard and deserted, the defendant is guilty of rape, without proof of outery or physical resistance. SAME.-Rape.-Instruction.—Overpowering Mind.-An instruction that "consent, induced by fear of personal violence, is no consent, and though a man lay no hands on a woman, yet, if by an array of physical force he so overpowers her mind that she does not resist, he is guilty of rape by having the unlawful intercourse," is not errone

ous.

SAME.-Rape.-Consent.-Force.-Fear.-Instructions.-For other instructions given and refused, involving the matters of force, fear and consent, see the opinion.

SAME.-Failure of Defendant to Testify.—Instruction Upon Must be Requested. The failure of the court to instruct the jury regarding their duty in a case where the defendant does not testify, is not error unless the defendant requests such an instruction.

From the Grant Circuit Court.

H. Brownlee and H. J. Paulus, for appellant.

A. G. Smith, Attorney-General, O. L. Cline, Prosecuting Attorney, and C. M. Ratliff, for State.

DAILEY, J.-This was a prosecution begun in the Grant Circuit Court, by the State of Indiana against the appellant, Mack Felton, by indictment, charging him with the commission of the crime of rape at said county, on the 10th day of September, 1893, upon the person of one Mollie Terrell.

Upon a plea of not guilty the cause was submitted to a jury for a trial in the court below, who found a verdict against the appellant, finding him guilty of the crime of rape, as charged in the indictment, and assessing his punishment at imprisonment in the State prison for five years. There was a judgment upon this verdict. Before the rendition of the judgment thereon, the appellant moved the court for a new trial, which motion was overruled, and to this ruling he properly saved an exception. From this judgment he prosecutes an appeal and assigns

Felton v. The State.

as error that the court erred in overruling his motion for a new trial.

Under the causes specified for a new trial, it is earnestly urged by the learned counsel for the appellant, that the evidence is entirely insufficient to sustain the conviction of the crime of rape, and that the verdict of the jury is, therefore, contrary to, and not sustained by, the evidence, and is, consequently, contrary to law.

The rule has long been settled in this court that in criminal as well as civil causes verdicts will not be disturbed merely on the weight of the evidence. When the evidence tends to sustain the verdict on every material point the court will not reverse the conclusion reached by the trial court and jury. McCarty v. State, 127 Ind. 223 (224).

It is only where there is an absolute failure of the evidence to sustain the finding or verdict on some material point that this court will interfere on that ground alone. Murphy v. State, 97 Ind. 579 (582); Ard v. State, 114 Ind. 542; Wachstetter v. State, 99 Ind. 290; Hudson v. State, 107 Ind. 372; Ritter v. State, 111 Ind. 324; Trout v. State, 111 Ind. 499; Kleespies v. State, 106 Ind. 383; Dolke v. State, 99 Ind. 229; Clayton v. State, 100 Ind. 201; Garrett v. State, 109 Ind. 527.

It is insisted:

First. That there is no evidence that the defendant accomplished his purpose by means of force either used or threatened.

Second. That the woman injured did not resist to the extent of her ability.

These two propositions are so closely related to each other that we may consider them together. A careful perusal of the evidence, as it appears in the record, bearing upon the question of force used by the appellant, and of resistance by her, reveals the fact that until the time

Felton v. The State.

of the occurrence in dispute, the appellant and the prosecuting witness were wholly unknown to each other. She was a resident of Kokomo, Indiana, but was returning home from the city of Muncie, where she had been on a visit to her husband, who was engaged in work at that place, and arrived at Marion, Indiana, at 3 o'clock in the morning, where she was compelled to remain for a time until she could secure a train for her destination. The woman was an entire stranger in the city, never having been there before; she had a valise in her hand, and was in need of assistance to a boarding house or hotel. She saw a Mr. Peters standing on the platform at the depot, and made her wants known to him, requesting his assistance to a private house where she could be entertained during the interim between trains. Peters recommended to her the "Spencer House" and promised to attend her to that place. There was no vehicle at the depot at the time, except an open topped, two-seated carriage, drawn by two horses and driven by the appellant. It was occupied by two men besides this defendant, all of whom were entire strangers to her. The appellant, Felton, was present on the platform when the conversation was had, and overheard what was said. He stepped up to Mrs. Terrell and informed her that she could ride with him, and he would drive her to the hotel. Peters then told him that if he would do so, it would be an accommodation to him, and requested her to go with the appellant. She entered the carriage with the defendant, under protest, upon his promise to take her to the hotel, and thereupon he drove it rapidly away. Instead of conveying her to the hotel, she was fraudulently driven with great speed to the woods south of the city into a ravine, in the darkness, where he stopped the team, laid a robe on the ground and had her dismount from the

Felton v. The State.

vehicle, after which he caught the woman by the shoulder and arm and laid her down.

After the defendant had accomplished his purpose, she attempted to get up, and he said: "By G-d, you lay still and let them have something to do with you," and she was thus compelled to remain prostrate until she also submitted to the lascivious embraces of his two confederates. When they had gratified their carnal desires, they placed her in the carriage and took her to a lumber yard where she was deserted and remained in fear during the residue of the night. In the morning, at about 5 o'clock, she appeared at a restaurant and called for a sandwich and a cup of coffee; complained of the headache and of the outrage that had been committed upon her, and was weeping at the time. She repeated her complaints to the coroner, to a policeman, and to the family with whom she was left for care and attention, and caused this prosecution to be instituted against the defendant for his crime.

It also appears that she was sick for five weeks after the transaction, thus indicating that she had suffered a severe mental and physical shock on account of the appellant's revolting conduct.

In addition to all this, it is shown by the record, that very soon after he started from the depot he caught her by the leg and made an indecent and insulting proposal to her, and told her of his design; that she begged him to have nothing to do with her, and to let her go, and cried constantly because of the indignities heaped upon her and for fear they would take her life. She was a small woman, in the presence of three able-bodied men, and doubtless apprehended great bodily harm from her assailants, who were abducting her from the city limits; although appellant said, at the time, that he had no intention of harming her. A declaration like this was not

Felton v. The State.

calculated to inspire confidence in the innocence of his motives, when it was refuted by conduct and declarations likely to produce an opposite effect. If the assurances of a party accused, to the prosecuting witness, are a more potent factor than his conduct, in determining the question of his guilt, then he may commit any heinous offense and afterwards come into court claiming the benefit of them, and thus escape the punishment.

It is insisted, by appellant's counsel, that the crime in this case is not proven, because the woman made no outcry. But it will be borne in mind that she was a person small in stature, away from home, in the hands of strangers, and in fear of great violence; that she saw no one to whom she could appeal for relief after they left the depot on the way to the woods where the act was perpetrated; and as the deed was committed in a grove at the edge of town, where there were no immediate habitations, a cry of distress would have been of little avail. Besides, in the terror of her situation, she may have thought the defendant would kill her before assistance could come if she made an outery. Aside from this, an examination of the evidence satisfies us that she is not a person of ordinary intelligence, and she probably acted from the appearances as they at the time presented themselves to her mind. In the peril of her situation, surrounded by the influences that environed her, the courts can not split hairs in measuring the degree of resistance she was capable of making.

It is the theory of the State, fairly supported by the evidence, that the mind of the prosecuting witness was so overcome by the language and conduct of defendant and his two associates, and the surroundings, that she was unable to do more than was done to resist the assault, and hence the act of sexual intercourse was forcible and against her will. "The nature and extent of the

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