State v. Shields. 6. The court erred in refusing to charge the jury that in a case of rape the evidence of the complainant, if she be a common prostitute, and of low, depraved and lewd habits, is not that of a full, competent, and wholly reliable witness. The accused had a right to this charge. The most pious and virtuous woman could not be more than a full, competent, and wholly reliable witness. If a prostitute is equally so, for what purpose is evidence of her unchastity admissible? Is an impeached or infamous witness full, competent and wholly reliable? But here again the court turned the attention of the jury from this question by charging that her testimony, properly corroborated, might be credible. 7. The court erred in charging the jury that good charac ter, instead of being a fact to be considered by them in deter mining whether there was reasonable doubt, was a fact of importance only where the existence of reasonable doubt was already determined. This is erroneous. If it were correct, character would never be important. For where there is no reasonable doubt of guilt the jury must convict. Where there is such doubt they must acquit. The true rule is that the jury must consider character as an element entering into their decision of the question whether reasonable doubt exists, Regina v. Rowton, 10 Cox C. C., 25; Felix v. The State, 18 Ala., 725; Fields v. The State, 47 id., 603, 605; State v. McMurphy, 52 Misso., 251, 253; Harrington v. The State, 19 Ohio S. R., 269; Stewart v. The State, 22 id., 478; State v. Ashe, 44 Cal., 288. The rule as stated by the court is not only erroneous but inconsistent with itself, the latter portion contradicting the former and confusing the jury, when it should have been clearly and simply as above laid down. 0. H. Platt, State's Attorney, contra. PARK, C. J. We find no error in this case which entitles the defendant to a new trial. It appears in the motion that all the rulings of the court in the admission and rejection of evidence, and in the charge to the jury, are made the subjects of complaint. It would be a State v. Shields. waste of time to remark upon them all, as most of them are manifestly correct. The defendant was on trial for a crime, which the state claimed to have proved was committed in fulfillment of a common purpose and design entered into between the defendant and several other persons who were present aiding and abetting him in the commission of it. The defendant ran away before the entire undertaking was accomplished. The state offered to prove what was done after the defendant had left, not for the purpose of showing that other crimes were committed by the other conspirators, but to prove that the defendant committed the particular crime laid to his charge. The court received the evidence, and we think committed no error by so doing. Suppose three or more persons should enter into a conspiracy to burn a building. It is arranged among them that A shall fire the building, and the other conspirators stand guard in the meantime to prevent discovery. They go to fulfill their design, and each performs the task assigned him; but A, immediately after the fire is set, runs away, contrary to the expectation of the others. The others remain and perform various acts intended to cover up the crime. Now it is well settled that evidence of the entire transaction covered by the conspiracy, from its commencement to its termination by the departure of all the conspirators from the scene of the crime, is admissible against A as well as against each of the other parties on their separate trials for the commission of the crime. The ruling of the court goes no farther than this, and is clearly correct. All the remaining rulings of the court upon questions of evidence raised in the case are manifestly correct, and we pass them without comment. The same is true of the instructions of the court to the jury, with perhaps two exceptions which we will notice. The defendant requested the court to charge the jury, that to constitute the crime of rape it was necessary that the prosecutrix should have manifested the utmost reluctance, and should have made the utmost resistance. The court did not comply with this request, and the refusal to do so is made a ground for asking a new trial. State v. Shields. While it may be expected in such cases from the nature of the crime that the utmost reluctance would be manifested, and the utmost resistance made which the circumstances of a particular case would allow, still, to hold as matter of law that such manifestation and resistance are essential to the existence of the crime, so that the crime could not be committed if they were wanting, would be going farther than any well-considered case in criminal law has hitherto gone. Such manifestation and resistance may have been prevented by terror caused by threats of instant death, or by the exhibition. of brutal force which made resistance utterly useless; and other causes may have prevented such extreme opposition and resistance as the request makes essential. The importance of resistance is simply to show two elements in the crimecarnal knowledge by force by one of the parties, and nonconsent thereto by the other. These are essential elements, and the jury must be fully satisfied of their existence in every case by the resistance of the complainant, if she had the use of her faculties and physical powers at the time, and was not prevented by terror or the exhibition of brutal force. So far resistance by the complainant is important and necessary; but to make the crime hinge on the uttermost exertion the woman was physically capable of making, would be a reproach to the law as well as to common sense. Such a test it would be exceedingly difficult, if not impossible, to apply in a given. case. A complainant may have exerted herself to the uttermost limit of her strength, and may have continued to do so till the crime was consummated, still a jury, sitting coolly in deliberation upon the transaction, could not possibly determine whether or not the limit of her strength had been reached. They could never ascertain to any great degree of certainty what effect the excitement and terror may have had upon her physical system. Such excitement takes away the strength of one, and multiplies the strength of another. The request in substance is as follows: that inasmuch as non-consent is to be proved by the resistance made, therefore, if the resistance falls short of the extremest limit that could have been made, the deficiency necessarily shows consent, and should be so charged as matter of law. The fallacy lies in State v. Shields. the assumption that the deficiency in such cases necessarily shows consent. If the failure to make extreme resistance was intentional, in order that the assailant might accomplish his purpose, it would show consent; but without such intent it shows nothing important whatsoever. The whole question is one of fact, and the court committed no error in so leaving it to the jury. The remaining question which we shall notice arises on the following charge to the jury. "Evidence has been offered to establish for the accused a good character. If the jury are satisfied beyond all reasonable doubt of the guilt of the party accused, the question of character is of little consequence, but if upon all the evidence there exists such reasonable doubt, the question of character becomes of great importance, because if such good character be established, it tends not only to rebut the presumption of guilt, growing out of the circumstances proved against him, but also strongly to fortify that presumption of innocence which rightfully belongs to every one accused of crime until proved guilty.” By this charge the court merely informed the jury regarding the weight of the evidence of good character, in different views of the case. The evidence had been introduced for the jury to consider in connection with the other evidence; and they were told that evidence of good character was of little importance when opposed by evidence of so conclusive a nature as to leave no reasonable doubt of the guilt of the accused. They were to find the defendant guilty beyond all reasonable doubt, if they found him guilty; but, in coming to a conclusion, if the evidence of guilt was conclusive of the fact, then but little weight should be given to evidence of character, although it should be considered with the other evidence. It is true, as the defendant claims, that evidence of good character should be considered by the jury in coming to a conclusion, but the weight of the evidence would depend upon the weight of the other evidence in the case. We do not advise a new trial. In this opinion the other judges concurred. VOL. XLV.-34 45 266 69 191 45 266 f75 583 Shields v. The State. JOHN SHIELDS vs. THE STATE. Upon a petition for a new trial for newly discovered evidence, after a conviction for a rape, it was held 1. That the fact of the existence of the newly discovered evidence could not be proved by mere ex parte affidavits. 2. That new evidence was not sufficient that merely went to show that the principal witness had before the trial made a statement inconsistent with that made on the trial. 3. Nor that which showed that the witness, (the victim of the rape,) had altered her opinion as to the petitioner being the person who committed the crime, where the change of opinion originated in a suggestion by another and was arrived at by a process of reasoning. It is a general rule that a new trial will not be granted upon the mere after-recollection of a former witness. PETITION for a new trial after a conviction upon an indictment for rape; (see the case next preceding;) brought to the Superior Court in New Haven County, and reserved, upon a finding of the facts, for the advice of this court. The case is fully stated in the opinion. W. C. Robinson, for the petitioner. 0. H. Platt, State's Attorney, for the State. LOOMIS, J. The petitioner, having been convicted of the crime of rape upon the person of one Ellen Warner, brought his petition to the Superior Court for a new trial for newly discovered evidence; and the case was reserved for the advice of this court. The newly discovered evidence is all contained in two affidavits annexed to the petition, which were taken before the petition was served, without any notice or opportunity for cross-examination in behalf of the state. Assuming for the present for purposes of discussion that the ex parte affidavits are competent evidence, do they disclose sufficient ground for granting a new trial? The evidence relied upon consists of two items;-1st. That Mrs. Warner, the victim of the crime, before her testimony was given in court, made an admission to a Mrs. Collins, |