PROSECUTION FOR RAPE.

Court of Appeals for Wayne County.

#### Benjamin F. Zell, v. The State of Ohio.

Decided, January 15, 1922.

*Criminal Law*— Relative *of Prosecuting Witness on Grand Jury which Returned Indictment against Defendant*— Competency *of Evidence against One Charged with Rape*— Child *Born as a Result of the Attack Exhibited to the Jury*— Prosecuting *Witness Silent as to the Attack until Child is Born.*

1. The presence of the father of the prosecuting witness on the grand jury which indicted the defendant for rape does not afford ground for sustaining a plea in abatement to the indictment.

2. In a prosecution for rape it is competent for the prosecuting witness to exhibit to the jury the child horn as a result of the alleged attack, and it is permissable for the prosecuting attorney to direct the attention of the jury to and comment upon such resemblances as he claims exist between the child and the defendant and tend to prove the paternity of the child.

3. Where it is in evidence that the prosecuting witness struggled against her assailant, and was only prevented from making outcry ■by his grasp of her throat, and was threatened with the death of both herself and her mother if she ever told of the outrage, it is for the jury to say whether, under the stress of such threats and the humiliation attending the attack, her failure to make any disclosure regarding the attack until the child was born affords reason for doubting the truth of her story as to the attack.

«“Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, March 7, 1922.

Error to the Court of Common Pleas.

*A. D*Metz, attorney for planitiff in error.

*W. G. Patterson,*Prosecuting Attorney, and *W. H. Boss,*attorneys for defendant in error.

Tkeash, J.

Benjamin F. Zell was indicted, and found guilty on April 29, 1921, of raping Ruth. — —-, a school girl, who bore the relation *386of grand niece to him by marriage, his wife being a sister of the gild’s grandmother. With the Zells at the time also lived a sister of Mrs. Zell. At the trial the girl testified that she had been in the habit of visiting her aunts, who lived not far from the home of her parents, and that on the evening of March 18, 1920|, she went there to borrow a book, and finding her aunts not at home, started to leave, when her uncle siezed her by the arm, and with his hand on her throat, forced her to accompany him to a shed in the rear-of the house, where, forcibly and against her will, he ravished her, overpowering all her resistance. At the same time, she said he threatened to bill her and her mother if she ever told anybody of the affair, and that by reason of these threats and the shame and humiliation of the affair, she never told her parents or other persons of the offense.

She attended school regularly until December 23rd, 1920, and neither her parents, teachers, friends or school mates suspected her condition. On December 24th, she became ill, and in a few hours gave birth to a child. She then stated that Zell was the father of the child, and for the first time told of the circumstances of the offense. Zell at the time of the crime charged was 72 years of age and the girl a few days past 16 years. The family physician testified that she was still a child — weighing less than 100 pounds, and was only physically developed as a child of 13 years. She was a sophomore in high school and had never had any boy company or companions, and as far as the record discloses, was a girl of unblemished character and reputation. Zell, a machinist by trade, was short of stature, strong and active for a man of his years.

On the stand Zell denied the girl’s story *in toto3*and claimed he did not know anything concerning her condition until ten days after the birth of the child, although he did admit he and his wife had been invited and planned to go to the girl’s home for Christmas dinner on the day following the birth of the child, but did not go there, and the record does not disclose any reason why they did not go. The next day after learning of the child’s birth, he left Wooster, to seek work elsewhere as he explained.

*387A motion for a new trial having been overruled, a petition in error was filed in this court seeking to reverse the judgment of the common pleas court.

There are numerous assignments of alleged error noted in the petition in error, but the principal ones relied upon in oral argument and in the brief of counsel may be classified as follows: (1) That the plea in abatement to the indictment should have been sustained, for the reason that the father of the prosecutrix was a member of the grand jury which returned the indictment against the defendant; (2) That the court erred in permitting the proseeuting witness to exhibit the baby to the jury during the giving of her testimony, and in permitting the prosecuting attorney to argue from such evidence the resemblance between the baby and the accused; (3) That the crime of rape was not proven, because there was no evidence of an outcry at the time Of the alleged commission of the offsense, nor complaint thereof on the part of the prosecutrix within reasonable time thereafter; (4) That the verdict of the jury is manifestly against the weight of the evidence.

(1) It has long been settled in this state that the presence of a near relative of the victim as a member of the grand jury does not invalidate an indictment against one accused of crime committed against such victim. The Supreme Court, in the case of *State*v. *Easter,*30 O. S. p. 542, held:

> “It is not a good plea to an indictment for murder, that a member of the grand jury was a nephew of the person who was murdered.”

The reason for this is well stated by .Wright, J., at page 543:

> ‘ ‘ The law has declared that certain qualifications are necessary. Can we go further, and say the grand juror must also be no kin to those injured by the accused? A moment’s consideration will show that this would be imposing absurd and impossible conditions. The grand jury do not know who will be accused before them, and if, upon a case being presented in which an injury has been done to some relation of a member of the jury, that member is to be disqualified, it may be necessary to have a new grand jury for every crime committed.”

*388And it has also been held, in the ease of *State*v. *Deiter,*81 O. S. 504, that a plea in abatement does not lie in such a ease.

(2) The second complaint is that the prosecuting witness was permitted to exhibit the child to the jury and the prosecuting attorney was allowed, over objection, to refer to and argue the resemblance of the child to the accused, to establish its paternity, one of the particular comparisons being the red hair of the baby and the red hair which the accused admitted, on cross-examination, he possessed as a child.

There are no reported holdings upon this subject in this state in prosecutions for rape, and the decisions of courts of last resort in other states are in conflict. The case of *State*v. *Danforth,*73 N. H. 215, 66 Atl. 839, 111 Am. St.. Rep. 600, appears to be the leading and best reasoned ease on the subject, holding as follows:

> *“2.*In a prosecution for rape the state could not be confined to proof by oral testimony, and excluded from presenting to the jury a child born to prosecutrix, as .evidence tending to establish the fact of birth and prior unlawful intercourse; hence there was no error in exhibiting the child to the jury.

> ‘ ‘ 3. In a prosecution for rape it was not error to permit counsel for the state to call attention to peculiarities in the features of a child born to prosecutrix and of the defendant, and to a general resemblance between them, as, if defendant was the father of the child, his guilt was proved, and any evidence tending to establish that relationship was relevant.

> “4. In a prosecution for rape, whether the features of a child born to prosecutrix are sufficiently developed to authorize its use by comparison with defendant, as evidence on the issue of paternity, is purely a question of fact.”

A much-quoted case, of the same title, *State*v. *Danforth,*48 Iowa 43, 30 Am. Rep. 387, holds to the contrary. The point of divergence in the reasoning of these opposing doctrines seems to center about the immaturity and changing characteristics of a very young child as compared to a mature person, and that this evidence is so vague, uncertain and fanciful as to be misleading to a jury. Other courts have fixed a definite age limit as necessary before tfie evidence is admissible,

*389'Most of the courts so holding concede, however, that there may be cases in which the maturity of the child or the characteristics or peculiarities relied upon as ground of resemblance or dissimilarity render the evidence competent upon the issue of paternity.

We feel, however, that this objection goes to the weight rather than the competency of the evidence.

It is common knowledge among lay people as among experts that children do not develop uniformly, either mentally or physically, but that both mental and hysical characteristics are transmittable by inheritance, and do frequently appear in. offspring in various stages of their development. A jury of laymen are as capable of making the comparison when both the putative parent and child are before them as the court. At least, it is difficult to see how the law can fix a definite time when such characteristics ■ may safely be said to appear, when nature has fixed none. At best it would require the court to take expert evidence in each ease to determine when such.period had arrived, if that were possible at all. Whether the features and characteristics of a child' are sufficiently developed to warrant its use as evidence by comparison with the alleged parent, is purely a question of fact and not of law, and should be submitted to the jury for determination and not decided by the personal impression of the court as a matter of law. Certainly, at least, the exhibiting of a child born to prosecutrix within due time after the offense charged, is competent to go to the jury in a prosecution for rape as evidence tending to eorrobate the testimony of prosecutrix and establish the fact of birth and prior unlawful intercourse.

We will not review further the conflicting holdings of the courts of the various states. They are cited and digested in able opinions referred to, in a note to *State*v. *Harvey,*112 Iowa 416, 52 L. R. A. 500; also see note, 6 Am.-Eng. Ann. Cases, 560, 3 R. C. L. 764; Wigmore on Evidence, Vol. 1, Sec. 166.

If this was a question of- first impression, we might be inclined to be of more uncertainty as to its solution, but the Supreme Court of Ohio in *Crow*v. *Jordan,*49 O. S. 655, has passed *390upon this very question in a bastary proceeding, and has said at page 656 of its opinion:

> “There was no error in permitting the child to be exhibited to the jury as evidence of alleged paternity and in corroboration of the testimony of the prosecutrix.”

We have been unable to distinguish between the competency of such evidence in a bastardy proceeding and in a criminal prosecution for rape, and we believe there is none, either in reason or upon authority of reported decisions. The issue in both prosecutions to which the evidence is directed is the paternity of the child, and if relevant in one case it should be relevant in the other involving the same issue. From an examination of the holding of many courts, it appears that where such evidence has been admitted or excluded in bastardy proceedings, it has likewise been consistently admitted or refused in rape cases.

We accordingly hold that in a criminal prosecution for rape, the child born as a result thereof may be exhibited to the jury as competent evidence, together with the other evidence upon the question of the paternity of the child and in corroboration of the testimony of the prosecutrix.

Such evidence being competent, it is not error for counsel for the state to comment thereon in his argument to the jury, and to call attention to any resemblances between the child and the defendant, and no error was committed by the court in either admitting such evidence or in the conduct of the state’s attorney in commenting thereon.

(3) The silence and delay of the prosecutrix in making complaint of the commission of the offense is claimed as evidence absolutely refuting the girl’s story and establishing the innocence of the accused.

If this evidence stood alone or unexplained, unquestionably it would east great discredit and suspicion upon the girl’s story, and might warrant the court in setting aside the verdict for failure of proof. But the girl did testify that she did struggle and tried to make an outcry, but was prevented by the hand of *391her assailant upon her throat and was silenced by the threat of death to herself and her mother if she ever told of the outrage, and we consider this a proper matter for the determination of the jury, along with the other evidence bearing upon the guilt or innocence of the accused.

The relationship, age, size, and circumstances of the parties to this case make the statements of the Supreme Court in the case of State v. *Labus,*decided February 15, 1921, and reported in Ohio Law Bulletin and Reporter, August 22, 1921, particularly appropriate to the case at bar:

> ‘ ‘ The force and violence necessary in rape is naturally a relative term, dependent upon the age, size and strength of the parties and their relation to each other; as the relation of father and daughter under 12 years of age with the filial obligation of obedience to the parent, the same degree of force and violence would not be necessary upon a person of such tender years as would be required were the parties more nearly equal in age, size and strength; but in the case at bar, there are sufficient threats, fright, intimidation and the like, coupled with the unnatural and atrocious act, to overwhelmingly prove the necessary force and violence to constitute rape, wholly independent of the presumption that the prosecutrix was incapable in law of consenting to such violence.”

Again, in the opinion of the case of *Dunn*v. *State,*45 O. S. 249, at p. 252, the court says:

> ‘ ‘ Silence and delay in making known the wrong would be likely to awaken suspicion.and doubt as to the truth of complainant’s statement. If, says Blackstone, she conceals the injury for any considerable time after she has had an opportunity to complain, such a circumstance would carry a strong presumption, though not conclusive, that her testimony is false or feigned. 4 Comm. 213. But when delay by the prosecutrix in making complaint or declaring the circumstances of the wrong has occurred, such delay may be explanied, and excused by proof of sufficient cause therefore, as for instance, want of suitable opportunity, or duress, or threats by the perpetrator of the wrong. ’ ’

(4) The last assignment of error is that the verdict of the jury *392was manifestly against the weight of the evidence. All the members of this court have carefully read the entire evidence in the bill of exceptions, and have given the case careful consideration, especially in view of the age of the defendant, and while we are not insensible to the human appeal of the spectacle of so aged a man going to the penitentiary to spend what doubtless may be the remaining years of his life, yet we cannot find that the verdict of the jury was manifestly against the weight of the evidence, but on the contrary we do find the verdict was fully warranted by the evidence, and that there were no material errors committed in the trial warranting a retrial of the case. The accused was represented by able and experienced counsel, who was untiring at every step of the proceeding in protecting his interests, and every right which the- law guarantees to one accused of crime was accorded to him by court, jury and the state. The admissions of the defendant while on the witness stand and his conduct after the birth of the child, furnish strong corroboration of the claims of the girl. In addition to the facts already stated, the record discloses that Zell had been very friendly with the girl, giving her presents and helping her with her lessons.

On the day of the birth of the child he had gone to her home, but had been refused admittance by the girl’s grandmother, who waived him away, saying he was not wanted there, and he went without question or protest. He and his wife had been invited to her house for Christmas dinner the next day, but did not go or give any reason for not going. He claimed he did not know of the girl’s condition or birth of the child until ten days after, when a relative who had been visiting the girl’s home came to his house and reported that Zell was charged with being the father of the child. The next day he left town, to get work as he claimed, and went from place to place, getting his mail at general delivery, and having mail sent to him by his wife from the railroad station box — not through the post office. For almost three months the sheriff was unable to locate him, although* he searched his home and tried to trace his whereabouts.

*393All these facts and many others were before the jury. They heard and saw the witnesses. They had opportunity to note the appearance and demeanor of the girl and defendant, upon the witness stand, especially under cross-examination, when conscience is oftentimes more clearly revealed in appearances than by words, and after a fair trial twelve men found him guilty .beyond a reasonable doubt of the crime charged in the indictment; and we, from a reading of the record alone, can find no reason for disturbing their verdict. .What the defendant must suffer is the result of his own wrong doing, and now, as in the day it was first uttered, “Verily, the way of the transgressor is hard.” So abhorrant and cowardly a crime, committed against a little school girl, could only come from a depraved and perverted nature, and the full penalty of the law is none too severe to meet it.

There are numerous other claims of alleged irregularities set forth in the petition in error, and we have examined each carefully, and while there were some slight errors and irregularities, such as occur in the trial of almost every case, yet we do not find any one singly or all collectively constitute error matérially affecting the rights of the accused.

The judgment of the common pleas court is affirmed, and case remanded for execution according to law.

Washburn, P. J., and Pardee, J., concur in judgment.