Felton v. The State.

resistance which ought reasonably to be expected in each particular case must necessarily depend very much upon the peculiar circumstances attending it, and hence it is quite impracticable to lay down any rule upon that subject as applicable to all cases involving the necessity of showing a reasonable resistance." Anderson v. State, 104 Ind. 467 (474); Ledley v. State, 4 Ind. 580; Pomeroy v. State, 94 Ind. 96; Commonwealth v. McDonald, 110 Mass. 405; 2 Bishop Crim. Law, section 1122.

In the case at bar, if the act of intercourse had been with the consent of the woman, it seems strange that the defendant discharged her at the lumber yard, an out of the way place, instead of taking her to the hotel as he promised to do. This of itself may have been a circumstance that had some weight with the jury in determining the question of the defendant's guilt.

It is not the law of this State that a woman assaulted with intent to commit a rape upon her is expected "to bite, if she has teeth; to kick, if she has feet; to scream, if she has a mouth; and to generally resist by all other violent means within her power." Such an instruction, in substance, was asked by the defendant in Anderson v. State, supra, and this court said: "The court had already instructed the jury that it was incumbent upon the State to show that the prosecuting witness had resisted with all the means within her power, and that was as far as the court was required to go under our decided cases, and others of recognized authority in this State."

In Ledley v. State, supra, the court said: "On the subject of resistance, a recent writer says, that if resistance is overcome by physical force, or her will overpowered by fear of death, or by duress, the crime is complete, though she ceased all resistance before the act. itself was finally consummated. She parts with her virtue as a traveler with a pistol at his breast parts with his

purse. In both cases the will is overpowered. It may be a voluntary muscular act, but not a free will act. They submit to their fate against their will, but voluntarily for fear of worse. Courts can not fastidiously expect every female to prefer death to violation, and her demeanor on such trying occasions, whether of tame submission or active resistance, is a circumstance for the jury to consider.'

The case of Eberhart v. State, 134 Ind. 651 (654), cites Bishop on Crim. Law as follows: "Some of the cases, both old and modern, are quite too favorable to the ravishers of female virtue, and ought not to be followed, on this question of resistance. The better judicial doctrine requires only that the case shall be one in which the woman 'did not consent.' Her resistance must not be

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mere pretense, but in good faith."

In Huber v. State, 126 Ind. 185, the court held that "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." The better rule is that it is not necessary that a woman should use all the physical force she has in resistance, but it must be real, and must have been overcome by the force of the defendant. State v. Shields, 45 Conn. 256; Commonwealth v. McDonald, supra.

Under one of the causes assigned for a new trial, the appellant calls in question the action of the trial court in giving to the jury, of its own motion, instruction number four, as follows: "If you find from the evidence in this case that an act of sexual intercouse did take place between the defendant and prosecuting witness, Mollie Terrell, as averred in the indictment, the question whether or not the prosecuting witness voluntarily consented to such act is a question of fact for you to determine from the evidence in the case. The defendant,

Felton v. The State.

Felton, insists that the prosecuting witness, Mollie Terrell, voluntarily consented thereto, and that he used no force or coercion of a kind to compel such consent, but that she yielded to his desires at his request; while on the other hand the prosecution insists that she did not voluntarily consent, but that she was induced by fear of personal violence, and that by an array of physical force the defendant so overpowered her mind that she did not resist, and only yielded when her will was overpowered, and that if she finally submitted to her fate it was against her will and for fear of more serious consequences. You are to say from the evidence which, if either, is right, and if after giving due weight to all the evidence you find the prosecuting witness, Mollie Terrell, did voluntarily consent to such act of intercourse, and not under coercion, you should acquit; but if you find, beyond a reasonable doubt, that the act was by force, and against her will, and find the other facts averred in the indictment established beyond a reasonable doubt, you should convict."

This instruction is in the exact language of an instruction given and approved by this court in the case of Anderson v. State, supra, except that in the case at bar the words "by an array of physical force" are injected into it, and it is objected that there is no evidence to which the expression was applicable, and that it was calculated to mislead the jury.

Without again attempting to give a recital of the transaction as it occurred, we are of the opinion that the hypothesis submitted to the jury by this instruction was fairly applicable to the evidence. It will be observed. that the court does not undertake to say what has been proven by either the State or the defense. The jury were left free to determine from the evidence which, if either, is right.

We do not think, under all the evidence in the case, that the instruction either misled the jury or prejudiced the substantial rights of the defendant. Graeter v. State, 105 Ind. 271 (274).

Complaint is also made of the action of the court in giving instruction number 5, as follows: "On the subject of consent, the court instructs you that a 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."

Here, again, it is contended that the instruction introduces into the case the element of "physical force,' which had no existence in fact. It is not necessary to enlarge upon what we have heretofore said. This statement of the law is found in 2 Bish. on Crim. Law, section 1122, and is applicable to the evidence in the case.

Counsel further complain of the refusal of the court to give instruction number 91⁄2, requested by appellant. This is a somewhat lengthy instruction, but we think it is not a correct statement of the facts as shown by the evidence. It omits to state, or in any way refer to the fact of fear or apprehension of harm on the part of the prosecuting witness. The subjective condition of the injured party is totally ignored in the instruction.

In Barker v. State, 48 Ind. 163 (167), this court said: "Instructions should be predicated on the whole evidence, and when they have a tendency to restrict the consideration of the jury to isolated facts, to the exclusion of other facts which are before them in evidence, it is not only a misdirection, but an infringement on the province of the triors of the fact."

Further the instruction closes by saying, in substance, if she submitted to the act of intercourse by defendant

Felton v. The State.

he would not be guilty. All the facts stated in the instruction might be true, yet, if the woman did submit to the act of intercourse, not voluntarily, but against her will, the defendant would be guilty of rape. Besides, the ground occupied by this instruction was covered by instructions number 6 and 8 asked by the appellant and given by the court, and he could not be harmed by its refusal.

Counsel complain of the refusal of the court to give instruction number 7 asked by the defendant, upon the subject of want of consent.

But in instruction number 1, asked by the appellant and given by the court, this language occurs: "Rape is the carnal knowledge of a woman without her consent." In a subdivision of instruction 3, this language oc"That said carnal knowledge of said Mollie Terrell was not only obtained by force and threats, but without the consent, and against the will of said Mollie Terrell."

curs:

In instruction number 4, asked by the appellant, is the following language: "You must be satisfied from the evidence, beyond a reasonable doubt, that he had carnal knowledge of said Mollie Terrell forcibly and against her will."

The fifth instruction, asked by appellant, told the jury in substance that if she consented to the act of intercourse, it would not be rape. The idea of want of consent being an essential element in the offense charged, is brought before the jury prominently, in most of the instructions given in the cause, so that they were fully advised upon the question, and knew it to be an ingredient of the crime.

There is nothing in the omission of the court to instruct the jury, upon the failure of the defendant to tes