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fornia the court has gone so far as to say that no rape case should ever go to the jury on the sole testimony of the prosecutrix, unsustained by facts and circumstances, without the court warning them of the danger of conviction on such testimony.v It is true that convictions have been sustained when resting exclusively on the testimony of a young child, w and of a woman who, at the time of the alleged act, was under the influence of ether; x but these are dangerous precedents ; and when corroborative testimony can be procured, its non-production should tell seriously against the prosecution. y

2. How far she may be corroborated by her own Statements. § 1150. In all cases, what she herself said so recently after the facts as to preclude the possibility of her being practised on, has been holden to be admissible in evidence as a part of the transaction; but the particulars of her complaint are not evidence of the truth of her statement, a except, perhaps, to corroborate her testimony when attacked. 6 For the true view is, that such statements cannot be received as independent evidence to show who committed the offence. They are admitted simply as part of the proof of the corpus delicti,c and in this view the reply as well as the statement, when part of the res gesta, is received. d

v People v. Benson, 6 California, ecutrix named the offender, but not 221.

what name she gave. R. v. Osborne, ic State 0. Lattin, 29 Conn. 389. C. & M. 622; R. v. Alexander, 2 Craw. See 1 Russ. on Cr. by Greaves, 695. & Dix, 126; R. v. McLean, 2 Craw. & I Com. v. Beale, ante, $ 1139. Dix, 350; People v. M'Gee, 1 Denio, y Ante, $ 1139, and see Barney v. 19. See ante, $ 665. People, 22 III. 160.

b Pleasant v. State 15 Arkansas, a R. v. Brazier, 1 East P. C. 444; 624; contra, Phillips v. State, 9 Humph. R. v. Clarke, 2 Stark. 241; R. v. 246, where greater latitude is allowed; Guttridge, 9 C. &. P. 471; R. v. Mer- State v. De Wolf, 8 Conn. 93, where, cer, 6 Jurist, 243; People v. Croucher, after an attempt to discredit her story 2 Wheel. C. C. 42; Stephen ». State, on cross-examination, it was held ad11 Georg. 225; Johnson v. State, 17 missible, as part of the evidence in Ohio, 593; R. v. Walker, 2 M. & R. chief, to corroborate her by proving 212; People v. M'Gee; 1 Denio, 19; she told the story in the same way, Laughlin v. State, 18 Ohio, 99 ; Bac- after the event; and see Conkey v. cio r. People, 41 N. Y. 265; Hogan v. People, 5 Parker, 31, where the rule State, 46 Missis. 274 ; Lacy v. State, was extended, under peculiar circum45 Ala. 80 ; Nugent v. State, 18 Ala. stances, to the husband's declarations. 521. The witness proving the coin- c R. v. Megson, 9 C. & P. 420. plaint may be asked whether the pros- d R. v. Eyre, 2 F. &. F. 579. VOL II. -12

177

Delay, when accounted for, does not exclude such statements.e

In Ohio, and perhaps in one or two other states, it has been said that “ the substance of what the prosecutrix said,” or the “declarations " made by her immediately after the offence was committed, may be given in evidence, in the first instance, to corroborate her testimony. el

Where the prosecutrix, a servant, stated that she made almost immediate complaint to her mistress, and that on the next day a washerwoman washed her clothes, on which was blood; but neither the mistress nor the washerwoman was under recognizances to give evidence, nor were their names on the back of the indictment, but they were at the assizes attending as witnesses for the prisoner ; the judge directed that both the mistress and the washerwoman should be called by the counsel for the prosecution, but said that he should allow the counsel for the prosecution every latitude in their examination. f

Where, on an indictment for rape, the judge trying the case admitted evidence of the declarations of the injured party immediately after the event, though she herself had not been brought as a witness, being at the time incapable of testifying, such admission was held error by the supreme court of New York, g and such is the general rule. h

Since such evidence is admissible merely as corroboration, it cannot be used to patch out the case of the prosecution by supplying new facts. Thus on a trial for rape, which came before the Virginia court of appeals, the main question was as to the identity of the prisoner. The female was examined, and although she swore positively that the prisoner was the person who committed the outrage upon her, she declined to give a description of him as at the time of the outrage. The commonwealth then introduced a witness to prove the particulars of the description of the person who committed the outrage, given by the prosecutrix to the witness on the morning after the rape was committed. This, for the reason just given, was properly held inadmissible, i

e State v. Knapp, 45 N. H. 149. f R. v. Stroner, i Car. & Kirwan, See State v. Marshall, Phill. (N. C.) 650. 49; State v. Peter, 8 Jones N. C. 19. g People v. M'Gee, 1 Denio, 21.

el McCombs v. The State, 8 Ohio See Com. v. Gallagher, 4 Penn. Law State R. (N. S.) 643; Laughlin v. Jour. 511. State, 18 Ohio, 99; State v. Peter, 14 h R. r. Nicholas, 2 C. & K. 246; 2 La. An. 521; Phillips v. State, 9 Cox C. C. 139; R. Guttridge, 9 C. & Humph. 246 ; State v. De Wolf, 8 P. 471. See State v. Emeigh, 18 Iowa, Conn. 93.

122.

The admissibility of such declarations is not affected by the fact that on a prior occasion a rape had been committed by the defendant on the prosecutrix. il

3. How she may be impeached. 32 $ 1151. In England, it was formerly held that the defendant might impeach the character of the prosecutrix for general chastity by general evidence, but not by particular acts. j So far was this view pushed, that it was held that the witness was not bound to say whether she had had connection with other men, or with a particular person named ; and that evidence of her having had such connection was inadmissible. k Since then, however, the witness was required to answer whether she had not had voluntary connection with the prisoner on a previous occasion ;l though, upon her denying that she had previous connection with third persons, it is now settled evidence cannot be received to contradict her. m So independent evidence is admissible to show that the prosecutrix had had a prior voluntary connection with the defendant. n It has even been held admissible to ask the prosecutrix whether, after the alleged rape, she had not been on the town. O

When the prosecutrix is incapable 12 Strang v. People, 24 Mich. 15. of testifying on account of her imma- i? See on this point, ante, § 814. ture age, her statements made in į R. v. Clarke, 2 Starkie R. 241. the defendant's absence, in answer k R. v. Hodyson, R. & R. 211. to questions put her by her parents, I R. v. Martin, 6 C. & P. 562 ; immediately after the alleged act, are Pleasant ». State, 15 Ark. 624. not admissible as independent evi- m R. v. Cockcroft, 10 Cox C. C. dence of the crime. Weldon v. State, 137; R. v. Holmes, 12 Cox C. C. 137; 32 Ind. 81. So when the prosecutrix overruling R. v. Robins, 2 Moody & fails to testify as to any point, this can

R. 512. As sustaining the text, may not be supplied by her unsworn state- also be cited People v. Jackson, 3 ments. Brogy v. Com. 10 Grat. 722; Parker C. R. 391; R. v. Dean, 6 State v. Shettleworth, 18 Minn. 208. Cox C. C. 33 ; R. v. Mercer, 6 Jurist, And so when the witness was 243. produced on trial in consequence of n R. v. Aspinwall, 2 Starkie Ev. her death. R. r. Megson, 9 C. & P.

700. 418. Ante, $ 675.

o R. v. Barker, 3 C. & P. 589. See i Broty v. Com. 10 Grattan, 722. R. v. Clay, 5 Cox C. C. 146.

not

§ 1152. In this country, there has been some conflict of authority. In New York, it has been held admissible to compel an answer from the prosecutrix as to whether she had had previous criminal connection with other men, p though if she denies such acts it is said that she cannot be contradicted by other witnesses. q

In Vermont, the question was held competent, though it was not decided whether she could be compelled to answer. r

In Michigan, upon denial by prosecutrix of criminal intercourse between herself and a third person, such third person may be called to prove such intercourse; but evidence is inadmissible of facts from which such intercourse may be inferred. pl

In North Carolina she may now be asked as to such particular acts of illicit intercourse. $

In Massachusetts, New Hampshire, Indiana, Missouri, and Ohio, it is held that the evidence should be confined to general character, t and that the prosecutrix cannot be interrogated as to previous criminal intercourse with persons other than the accused himself; nor is such evidence of other instances admissible.

In Ohio while, as has been just said, it is competent to impeach the prosecutrix by proving her reputation for truth to be bad at the time of the examination; it is held error in the court to limit such evidence to her character as it existed before and at the time of the commission of the alleged crime. Evidence of bad reputation for chastity is limited by the date of the crime. u

In California, it is said that where the prosecutrix is the only witness, evidence that she had committed acts of lewdness with other men is admissible, as tending to disprove the allegation of force and total want of assent on her part. It is immaterial by whom particular instances of lewdness with other men are proved, and it is unnecessary to question the prosecutrix in regard to them. v

p People v. Abbott, 19 Wend. 192; t Com. v. Regan, 105 Mass. 593; though see Pleasant v. State, 15 Ark: McCombs v. State, 8 Ohio St. R. (N. 624 ; Low 1. Mitchell, 6 Shepl. 372; S.) 643; McDermott v. State, 13 Ohio Camp v. State, 3 Kelly, 417.

St. R. (N. S.) 332; Wilson 2. Siate, 9 People v. Jackson, 3 Parker C. R. 16 Ind. 392; State 1. Forshner, 43 N. 391.

H. 89 ; State v. Knapp, 45 N. H. 148; r State v. Johnson, 3 Wms. (28 State v. White, 35 Mo. 500. As to Vt.) 512; State v. Reed, 39 Ver. 417. impeaching of witnesses generally, see g2 Strany v. People, 24 Mich. 1. ante, $ 814-821 ; post, $ 3009.

State v. Murray, 63 N. C. over- u Pratt v. State, 19 Ohio St. (N. S.) ruling State r. Jefferson, 6 Iredell, 305. 277; but see cases cited ante, note o.

3

The prosecution may of course introduce rebutting evidence to sustain the prosecutrix's character for chastity. w

On a trial for rape, or for assault with intent to commit a rape, the acts and declarations of the husband of the woman on whom the offence is alleged to have been committed, are not admissible to discredit the wife examined as a witness. x

A., being indicted for committing a rape on B., it was held that evidence showing bad character on the part of B.'s parents is inadmissible. y

The inference arising from a long silence on the part of the prosecutrix is a presumption not of law, but of fact, to be passed on by the jury.z

It has been ruled that the prosecutrix may be asked whether the accused, prior to the act, had not made improper propositions to her. a

V. PLEADING. al $ 1153. Joinder of defendants. Two defendants may be joined as principals in rape; a- and an indictment has been sustained, which in one count charges G. as principal in the first degree, and W. as present, aiding and abetting, and in another count charges W. as principal in the first degree, and G. as aiding and abetting. a3 People v. Benson, 6 Cal. 221.

Mass. Stat. 1852, ch. w People v. Tyler, 36 Cal. 522; and 259, § 2. see Turney v. State, 8 S. & M. where (188) Rape. Upon a female other than this was permitted as evidence in a daughter or a sister of the defendchief.

ant, under Ohio Stat. p. 48, sect. 2. 2 McCoombs v. The State, 8 Ohio (189) Rape. Upon a daughter or sisSt. R. (N. S.) 643.

ter of the defendant, under Ohio y State v. Anderson, 19 Missouri Stat. p. 48, § 1. (4 Bennett), 241.

(190) Rape. Abusing female child 2 State v. Peter, 8 Jones N. C. 19. with her consent, under Ohio Stat. See ante, $ 449 b, 1150.

p. 48, sect. 2. a People v. Manahan, 32 Cal. 68 ; [For assaults with intent to ravish, see R. v. Reardon, 4 F. & F. 76.

253, &c.] al See Wh. Prec. for Forms, as fol- a? Strang v. People, 24 Mich. 1 ; R. lows:

v. Burgess, 1 Russ. on Cr. 687. See R. (186) General forms.

v. Crisham, 1 C. & M. 187. (187) For carnally knowing and abus- a3 R. v. Gray, 7 C. & P. 164. See ing a woman child under the age of Folke's case, 1 Mood. C. C. 354.

ten years.

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