quired to convict. Sack. Inst. (2d ed.) No. 11, 767; Whart. Crim. Ev. (9th ed.) § 273; State v. Wilson, 91 Mo. 410; People v. O'Sullivan, 104 N. Y. 481; Parker v. State, 67 Md. 329; Dunn v. State, 45 Ohio St. 249. If there is no outcry and prosecutrix remains friendly with accused after offense, these facts raise a strong presumption of innocence on the part of the accused. Barney v. People, 22 Ill. 160. The same presumption arises where there is no injury to the clothing and prosecutrix concealed the wrong for several days. State v. Cross, 12 Iowa, 66, 79 Am. Dec. 519. No outery is strong evidence against prosecutrix's story. State v. Cone, 46 N. C. 18; Gifford v. People, 87 Ill. 210; Eyler v. State, 71 Ind. 49; Leoni v. State, 44 Ala. 110; Topolanck v. State, 40 Tex. 160; State v. Byrne, 47 Conn. 465. Where defendant denies the rape prosecutrix must be corroborated. Mathews v. State, 19 Neb. 330; Gazley v. State, 17 Tex. App. 267; People v. Tierney, 67 Cal. 54; Dickey v. State, 21 Tex. App. 430; Bailey v. Com. 82 Va. 107; Carney v. State, 118 Ind. 525; Hall v. People, 47 Mich. 636; State v. Cook, 65 Iowa, 560; Lawson v. State, 17 Tex. App. 292. If there has been a want of promptness in making complaint or declarations the court should not admit evidence of complaint or declarations until delay has been satisfactorily excused or justified.

§ 523. Utmost Resistance must be Shown.-Of course, the phrase, "the utmost resistance," is a relative one; and the resistance may be more violent and prolonged by one woman than another, or in one set of attending physical circumstances than in another. In one case a woman may be surprised at the onset, and her mouth stopped so that she cannot cry out, or her arms pinioned so that she cannot use them, or her body so pressed about and upon that she cannot struggle. 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 People v. Bransby, 32 N. Y. 525, 531, 540; People v. Hulse, 3 Hill, 309, 316, 317; Rex v. Lloyd, 7 Car. & P. 318; Crosswell v. People, 13 Mich. 427, 433, 87 Am. Dec. 774; People v. Dohring, 59 N. Y. 374, 17 Am. Rep. 349.

In Iowa, it is held in one case, that it is not necessary to establish the non-consent or force by the outcry of the female, nor to show the fact of an actual struggle. It is to be observed of that

case, that the imbecility of mind of the female was shown, and that some force was used by the accused; and the case turned upon the lack of intelligence in the victim to give or withhold consent, or to prompt a vigorous resistance. State v. Tarr, 28 Iowa, 397.

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

§ 524. Presumption as to Infants.-In Ohio it is held that "an infant under the age of fourteen years is presumed to be incapable of committing the crime of rape, or an attempt to commit it, but that presumption may be rebutted by proof that he has arrived at the age of puberty, and is capable of emission and consummating the crime." Williams v. State, 14 Ohio, 222, 45 Am. Dec. 536. The same rule prevails in New York. People v. Randolph, 2 Park. Crim. Rep. 174. See also Com. v. Green, 2 Pick. 380; Williams v. State, 20 Fla. 777.

The rule doubtless is that on the trial of an indictment for rape proof of the fact that the prosecutrix made complaint recently after the commission of the offense is competent; while details given by her as to how the offense was committed, and by whom, are not competent as evidence in chief; that it is also competent to show the condition of the prosecutrix, mentally and otherwise, immediately after the offense in order that the jury may judge more accurately as to the credit that should be given to her testi

mony.

Mr. Russell, in his treatise on Crimes, after mentioning among the circumstances, bearing on the credibility of the female, the fact that she presently discovered the offense, says: "It is the usual course, in cases of rape, to ask the prosecutrix whether she made any complaint, and if so, to whom; and if she mentions a person to whom she made complaint, to call such person to prove that fact. But it has been the invariable practice not to permit either the prosecutrix or the person so called to state the particulars of the complaint during the examination in chief.

These several writers refer to the numerous cases in England, and in this country, in which, not without some conflict, however, the subject has been discussed.

Thus, in Rex v. Clarke, 2 Stark. 334, Holroyd, J., held that the fact of her having made the complaint was evidence, as also was the description of her state and appearance at the time; but that the particulars of the complaint were not evidence of the truth of her statement.

In Reg. v. Walker, 2 Mood. & R. 212, it was held by Parke, Baron, that the female assaulted may be confirmed by proof, that she recently after the alleged outrage made a complaint, but that the particulars of what she said cannot be asked in chief of the confirming witness, though they may in cross-examination.

In Reg. v. Megson, 9 Car. & P. 428, evidence having been given of the appearance of the female on arrival at home early in the morning, immediately after the alleged outrage, and of her condition on examination by a surgeon on a subsequent day; and also, that as soon as she reached home in the morning, she made complaint of what had happened to her, and it was proposed to inquire "the terms of the complaint," it was excluded. In that as also in Reg. v. Guttridge, 9 Car. & P. 471, where evidence of her recent complaint was excluded, the injured female had not been examined as a witness. Thus showing that her declarations are not, per se, evidence against the party charged.

In People v. McGee, 1 Denio, 19, the supreme court of New York state approve and follow the decisions in the two cases last cited.

In People v. Hulse, 3 Hill, 316, Bronson, J., after citing the admonitory remarks of Lord Hale on the ease with which the accusation may be made, and the difficulty of defending by the party charged, be he never so innocent adds: "Cases of this character do not call for any relaxation of the rules of evidence for the purpose of supporting the accusation. There is much greater danger that injustice may be done to the defendant in cases of this kind, than there is in prosecutions of any other character."

In a case of this character, the omission of the prosecutrix to promptly make complaint of the wrong which she has suffered, may be taken as a circumstance against the credibility of her statements as a witness against the prisoner, unless delay in doing

It

so is reasonably excused. Higgins v. People, 58 N. Y. 377. is, therefore, competent to prove by the witness to whom made, that she did not make such complaint. Such a proof is not, and cannot, be treated as any evidence of the fact so stated, but is admissible only on the question of her credibility, and therefore can be received only when she has testified as a witness. People v. McGee, 1 Denio, 19; Baccio v. People, 41 N. Y. 265. The cases are not uniform as to the extent of the inquiry which may be put to and answered by a witness to whom such complaint is made. The rule in some of the states permits a full statement in detail of the facts communicated by and embraced in the complaint to be given by the witness. It is such in Connecticut (State v. DeWolf, 8 Conn. 153, 20 Am. Rep. 90; State v. Kinney, 44 Conn. 153, 26 Am. Rep. 436); in Tennessee (Phillips v. State, 9 Humph. 246, 49 Am. Dec. 709; Benstine v. State, 2 Lea, 169, 31 Am. Rep. 593); and in Ohio. Johnson v. State, 17 Ohio, 593; Laughlin v. *State, 18 Ohio, 99, 51 Am. Dec. 444. The rule in England for many years has been more restrictive, and does not permit the admission, on the part of the prosecution, upon the trial, of the statement so made by the prosecutrix, to any extent further than that she made complaint of an outrage upon her person. The name of the persons who did it, or the place where done, as declared by her at the time of making such complaint, is not admissible, nor is any other than the general fact embraced within it; and such is the rule in some of the states. Reg. v. Osborne, 1 420; Rex v. Clarke,

Car. & M. 621; Reg. v. Megson, 9 Car. & P. 2 Stark. 241; Reg. v. Walker, 2 Mood. & R. 212; Reg. v. Mercer, 6 Jur. 243; Oleson v. State, 11 Neb. 276, 38 Am. Rep. 366; State v. Thompson, 38 Ind. 39; State v. Richards, 33 Iowa, 420.

It is proper evidence in support of an indictment for rape that the injured party made complaint immediately after the occurrence. It is not admitted as evidence of the criminal act, but in support of direct evidence of such an act. Baccio v. People, 41 N. Y. 265.

These rules in regard to the crime of rape laid down by the old authors have been recognized by the courts down to the present time; and the fact that the complaining witness made early complaint of the offense charged has always been considered strong corroboration of her charge; and the fact that she made no complaint at the time, and delayed the prosecution, has always been

considered a suspicious circumstance against the prosecution. In this case, the complaining witness testified that as soon as the accused left her house she left the house and went to Mrs. Marston's, her nearest neighbor, and told her what had been done, and that when she met her husband, on the same day, she made complaint to him. Rex v. Clarke, 2 Stark. 241; Reg. v. Osborne, 1 Car. & M. 622; Reg. v. Megson, 9 Car. & P. 420; State v. Niles, 47 Vt. 82; Baccio v. People, 41 N. Y. 265; Reg. v. Walker, 2 Mood. & R. 212; People v. McGee, 1 Denio, 19; People v. Hulse, 3 Hill, 316; People v. Mayes, 66 Cal. 597; People v. Tierney, 67 Cal. 54; State v. Richards, 33 Iowa, 420; State v. Clarke, 69 Iowa, 294; People v. Gage, 62 Mich. 271. These cases all hold that it is proper for the prosecution to show that the complaining witness made complaint of the alleged ravishment, and that the person to whom the complaint was made may be called as a witness on the part of the state, and may testify that such complaint was in fact made; but the particulars of the statements made by the complainant witness cannot be given in evidence, except in a case where the person ravished is very young. There certainly was no error in permitting the husband of the prosecuting witness to testify that she made complaint to him of the outrage when she first saw him on the evening after the offense was claimed to have been committed; nor was there any error in permitting him and the medical witness to testify to the existence of the marks and bruises upon her person. There is no suspicion attached to the case of the state arising from delay in the prosecution. The injured party, in the language of the old law, made immediate "hue and cry," and had the defendant arrested within a few hours after the alleged crime was committed. Hannon v. State, 70 Wis. 448, 10 Crim. L. Mag. 421.

Touching the crime under discussion, Blackstone says: "The party ravished may give evidence upon oath, and is in law a competent witness; but the credibility of her testimony, and how far forth she is to be believed must be left to the jury upon the circumstances of fact that concur in that testimony. For instance: If the witness be of good fame; if she presently discovered the offense, and made search for the offender; if the party accused fled for it; these and the like are concurring circumstances which give greater probability to her evidence. But on the other side, if she be of evil fame, and stand unsupported by others; if she