#### William Thompson v. State of Nebraska.

Filed April 3, 1895.

No. 7331.

1. Rape: Evidence of Inability of Prosecutrix to Resist. In a prosecution for the crime of rape, where it appears from the record that the person upon whom the crime was alleged to have been committed was but sixteen years of age, had suffered a physical injury which still affected her and partially deprived her of physical strength, and was “simple minded” and acted upon by fear, *held,*that these facts must be considered by the jury in connection with all the attendant facts and circumstances of the alleged crime to determine whether the resistance to the act was. such as to show non-consent of the prosecutrix and to constitute the act rape.

2. -Sufficiency of Evidence to Sustain Conviction. The evidence examined, and *held*sufficient to sustain the verdict.

3. • •-: Admission of Testimony. The action of the court in admitting testimony examined, and *held*not erroneous.

4. Criminal Law: Review: Exceptions to Admission of Testimony. Where no objections are made nor exceptions taken to the admission of testimony in the trial court, such action cannot be reviewed in this court.

5. Assignments of Error: Instructions: Evidence. It was-*367assigned for error that the court erred in giving paragraphs 2, 3, 4, 5, 7, 8, and 10 of the instructions given by the court on its own motion, for the reason that under the evidence the court should have instructed the jury to acquit the defendant and not have submitted the question of his guilt to the jury. *Held,*That the determination that there was sufficient evidence to sustain a verdict against defendant meets this objection to the instructions.

6i- Criminal Law: Assignments of Error: Review. Where in an assignment of errorin a motion for new trial it is stated that the court erred in refusing to give a group of instructions, it will be examined or considered no further when it is ascertained that the refusal to give any one of the instructions was proper. *(JmMns v. Mitchell,*40 Neb., 664.)

Error to the district court for Dawson county. Tried below before Holcomb, J.

*Gaslin & Leek,*for plaintiff in error.

*A. 8. Churchill, Attorney General,*for the state.

Harrison, J.

During the month of September, 1894, at a term of the district court then beiDg held in the county of Dawson, the plaintiff in error, "William Thompson, was convicted of the crime of rape upon one Carrie Brockett, committed May 18, A. D. 1894. After motion for new trial filed in his behalf the same was overruled and he was sentenced to confinement in the penitentiary for the period of three years, and lie has removed the case to this court to obtain a review of the proceedings during the trial in the district court.

The assignment of error which seems to be mainly relied upon by plaintiff in error is that the verdict was not sustained by sufficient evidence. Iu the district court the accused produced evidence of an *alibi,*but the testimony relating to this branch of the ease was conflicting, and it is conceded by counsel in the brief filed that the finding of the *368jury on this subject cannot be disturbed. The testimony discloses that the prosecutrix, Carrie Brockett, was but sixteen years of age at the time the crime was committed; that during the month of August, 1893, “she fell off a horse” and broke her collar bone, and that on May 18, 1894, the date of the alleged crime, her right arm and shoulder felt very sore and she could not and had not used it to do much heavy work since the time it was injured". She was at the time living with her grandmother, who was very deaf, almost bedridden, and partially demented, and nursing and attending her. They lived in a house in the town of Lexington, and were the only occupants of the house. A physician, who made regular professional calls at the house to render such medical assistance or relief as was needed by the grandmother, testified that the prosecutrix was a simple-minded girl, or was mentally weak and not possessed of the average intellect of girls of her age, and there was testimony of one other witness which was slightly corroborative of the physician’s evidence on the subject of the Brockett girl’s deficiency in mental development or capacity.

The house in which the girl and her grandmother resided was, as she testifies, located about four blocks from the court house in the city of Lexington, fronted on the street to the south of it, and there was what they called an east room, a west room, and a summer kitchen. The east room was used as a bedroom by the prosecutrix and her grandmother. There was an outer door to what was called the west room, and she states that about 9 o’clock of the evening or night of the 18th of May, 1894, some one knocked at this door, and when she opened it she saw the accused standing there, and he stated to her he had been informed the house was for rent, and requested to be allowed to see the rooms; that she took the lamp which was then in the west room and conducted him through the house, into the east, or bedroom, into the summer kitchen, *369and back into the west room. She placed the lamp upon a table and stood behind a rocking chair near the table; that the accused talked about the house, and coming toward her, put his hand upon hers and then threw his arms about her waist; that she tried to get away from him and he stumbled over a box; that just then the grandmother called her, and after asking him to go home she went into the east room to see what was wanted,. He followed, and she then went again into the west room after the light, and he immediately followed, closed the door between the two rooms, put his arm or arms around her and held her hands in his, pulled or led her from the door to the table on which the lamp stood, and with one hand turned the light down, and then put his right hand under her knees and ■carried her over next to one side of the room and threw her down. She states that during the whole time she was trying to release herself, but was unable to do so; that she did not kick or bite him or make any outcry, but struggled to get her hand loose and keep her dress down with her right hand, of which he did not have hold or control; that when he threw her down she said to him, *“*For God’s sake let me up.” She further stated that when they were on the floor he was by her side; that he obtained control of both her hands and pulled up her clothes; that she had her feet crossed and was fighting to keep him off; that he then got on top of her and put his foot between her legs and pulled them apart and accomplished his purpose, got up and sat in a chair, and, when she was getting up, caught her and pulled her down on his lap and held her there and talked to her for possibly a few moments, when she asked him to take his cap and go home and he went away. When asked if she made any outcry, and why she did not strike him, she answered that she did not because she was afraid of the accused, and- she feared him because he had been drinking whiskey, and that she knew this to be so from smelling his breath. She did not tell any person of *370what had occurred until the following day. The prosecutrix also testified that while at the house the accused told her his name was William Thompson. It further appears from her testimony that there was a house right across the street and west from this one in which it was alleged the rape was committed, and one just across the road northwest, and another, the doctor’s house, in the adjoining-block.

It seems very clear from an examination of all the testimony that the finding of the jury to the extent that the party who did the deed fully intended to employ all the force which might become necessary to enforce his will and pleasure, and did use all that became needful to overcome-the resistance made by the girl, was sufficiently shown by the evidence; but it is strenuously argued that the prosecutrix did not resist the attacks upon her as energetically as she should, by the use of all the natural agencies and powers which she possessed and which might have been employed for such purpose; that she made no outcry and did not kick, bite, or strike the party who made the assault,, and that it must be concluded that she consented to the act of sexual intercourse, and the finding of the jury, embracing,, as it must have done, as one of its constituents, non-consent, on her part, was wrong and not supported by the evidence. In support of this assignment the case of *Oleson v. State,*11 Neb., 276, is cited, in which the general doctrine on the subject of resistance in cases of rape was announced in the following language: “To constitute the crime of rape, where it appears that at the time of the alleged offense the prosecutrix was conscious and had possession of her natural, mental, and physical powers, and was not terrified by threats or in such position that resistance would be useless, it must appear that she resisted to the extent of her ability;” and' in the body of the opinion there appears a quotation from the case of *People v. Morrison,*1 Parker Crim. Rep. [N. Y.], 625, as follows: “To constitute the crime there must *371be unlawful and carnal knowledge of a woman by force, and against her will. * * * The prosecutrix, if she. was the weaker party, was bound to resist to the utmost. Nature had given her hands and feet with which she could, kick and strike, teeth to bite, and a voice to cry out; all these should have been put in requisition in defense of her chastity.” We understand that where it is apparent from the testimony that these things were or were not done by-the party upon whom it is alleged the rape was committed, it is matter of evidence to be considered by the jury in connection with all the other facts and circumstances surrounding and elements of the crime charged and from which, combined, the jurors must determine their verdict. The rule-stated in *Oleson v. State, supra,*as a general rule, is a correct one and has, since the decision, been adhered to by this-court, but the application of this rule must and will be-governed and modified by the circumstances and facts surrounding each particular case.

In the case of *People v. Connor,*27 N. E. Rep. [N. Y.], 252, it was decided: “The evidence showed that the defendant was a strong man of mature years, engaged in conducting an intelligence office; that the prosecutrix was a-, girl, only a little" over sixteen, who went to his office to*obtain employment; that defendant suddenly assaulted' her while they were alone together in his office; that she-struggled to get away from the defendant, and continually requested him to release her, and that she did not cry out because she was too frightened to do so. Held that the jury were justified in finding that she resisted to the extent of her existing ability;” and the court states in its opiniont “It is quite impossible to lay down any general rule-which shall define the exact line of conduct which shall be pursued by an assaulted female under all circumstances, as the power and strength of the aggressor, and the physical and mental ability of the female to interpose resistance to the unlawful asssult, and the situation of the par*372ties, must vary in each case. What would be the proper measure of resistance in one case would be totally inapplicable to another situation accompanied by differing circumstances. One person would be paralyzed by fear and rendered voiceless and helpless by circumstances which would only inspire another with higher courage and greater strength of will to resist an assault. A young and timid child might, we think, be easily overpowered and deprived of her virtue before she had an opportunity to recover her self-possession and realize her situation, and the necessity of the exercise of the utmost physical resistance in order to preserve her virtue. It would be unreasonable to require the same measure of resistance from such a person that would be expected from an older and more experienced woman who was familiar with the springs and motives of human action and acquainted with the means necessary to be used to protect her person from violence. * * * When an assault is committed by the sudden and unexpected exercise of overpowering force upon a timid and inexperienced girl, under circumstances indicating the power and will of the aggressor to effect his object, and an intention to use any means necessary to accomplish it, it would seem to present a case for a jury to say whether the fear liaturally inspired by such circumstances had not taken away or impaired the ability of the assaulted party to make effectual resistance to the assault. See, also, *People v. Dohring,*59 N. Y., 383, where it is said: “Of course the phrase, ‘the utmost resistance,5 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 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.55 The nature and the extent of the resistance which ought reasonably to be expected in each particular case must necessarily *373depend 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. *(Felton v. State,*39 N. E. Rep. [Ind.], 228; *Anderson v. State,*104 Ind., 467, 474, 4 N. E. Rep., 63, and 5 N. E. Rep., 711; *Ledley v. State,*4 Ind., 580; *Pomeroy v. State,*94 Ind., 96; *Commonwealth v. McDonald,*110 Mass., 405; 2 Bishop, Criminal Law, sec. 1122.)

In the opinion in the case of *Hammond v. State,*39 Neb., 252, Post, J., says with reference to an instruction in which it was stated: “‘In order to convict, they must find that the prosecutrix resisted to the extent of her ability in view of the circumstances surrounding her at the time/ Such, undoubtedly, is the general rule, but to that rule there are some recognized exceptions, among which is that where the female assaulted is very young and of a mind not enlightened on the subject, the law exacts a less determined resistance than in the ease of an older and more enlightened person. (2 Bishop, Criminal Law, 1124; Wharton, Criminal Law, 1143.) * * * There exists a wide difference between consent and submission, particularly in the case of a female of tender years when in the power of a strong man. Mere submission in that case is essentially different from such a consent as the law declares to be a justification of the act. (3 Russell, Crimes, 934.) Coleridge, J., in *Reg. v. Day,*9 C. *&*P. [Eng.], 722, thus distinguishes: ‘Every consent involves a submission; but it by no means follows that a mere submission involves consent. It would be too much to say that an adult submitting quietly to an outrage of this description was not consenting. On the other hand, the mere submission of a child when in the power of a strong man, and most probably acted upon by fear, can by no means be taken as such consent/ ”

In the ease at bar the testimony disclosed that the party *374alleged to have been assaulted was but sixteen years of age, and although of sufficient mental capacity to be placed and left in charge of the house and her invalid, almost helpless, and partially demented grandmother, and to do the necessary housework, that she was “simple minded,” not of average mentality, and, moreover, that she was partially disabled physically, her collar bone having been broken a few months prior to the time of the assault, and that the injured portion of her body was still causing her pain and she was unable to employ the right arm in doing any heavy work; that the accused, when they were in the room alone and no one in the house who could be of any assistance to her (for the grandmother, according to her testimony, would have been powerless to aid her), pinioned her, or caught her around the body, held her hands and disabled her from offering resistance. Combining these facts with her testimony that she did struggle all she could and was afraid to offer further resistance to his efforts because he had been drinking whiskey, and other facts and circumstances connected with the alleged crime, as detailed in the evidence, we are satisfied that there were sufficient evidential facts apparent in the testimony to sustain a finding by the jury that there was no consent to the sexual intercourse by the prosecutrix during any portion of the act, and that she made such resistance as it was reasonable to expect her to do to manifest her opposition, when we •consider her age, her strength physically, and the light or understanding which she possessed mentally, and all the other attendant facts and circumstances. If so, this was sufficient. (Wharton, Criminal Law, sec. 557; *Commonwealth v.*McDonald, *supra.)*

One assignment of the petition is that the court erred in giving paragraphs 2, 3, 4, 5, 7, 8, and 10 of the instructions given on its own motion, for the reason that under the evidence the court should have instructed the jury to acquit the defendant, and not have submitted the question of his *375guilt to the jury. Having concluded that there was sufficient evidence to sustain a verdict of guilty, we have, in effect, determined the question raised by this allegation of the petition and need not further examine it. There being no fault found with any particular one of the instructions, but a general complaint directed against all of them that they should not have been given, but in their stead there -should have been a direction to the jury to acquit the defendant, based upon the insufficiency of the evidence, a •determination that there was evidence sufficient to submit to the jury completely answers this objection to the instructions. It is claimed in the petition that the trial court -erred in admitting a portion of the evidence of one of the witnesses for the state, Philip Yocum, found on page 35 of the bill of exceptions. We have examined all of the evidence on the page indicated to the admission of which any -objection was interposed, and in our opinion there is none which could in any degree prejudice the accused in his rights or mislead the jury. Hence, if there was any error it was not prejudicial.

It is further alleged that the court erred in admitting the evidence of John A. Funke, one of the witnesses for the state, and for such testimony we are directed by the petition to pages 37, 38, and 39 of the transcript of the evidence. The only interrogatory on either of the pages to which any objection was made is the following: *“*Q,. State if on the 19th day of May, 1894, you saw the defendant Thompson. Defendant objects as immaterial and •irrelevant. Overruled. Exception. A. Yes, sir.” There was nothing in this question nor its answer which was harmful to the accused or his interests. All the testimony -on the pages designated, except this just quoted, was received without objection, and at the close of the evidence given by this witness the attorneys for the accused asked that it all be stricken out, and it was so ordered by the «court, except a small portion of it, and to the ruling of the *376court allowing this small portion to remain in the record! there was no objection or exception; hence there is nothing; in this assignment of the petition in which we can discover any available error.

It is argued that the court erred in refusing to give certain of the instructions offered and requested by the defendant. In the motion for a new trial appears the following statement in regard to these instructions: “The court erred in refusing to give the first, second, third, fourth, and fifth paragraphs of instructions asked for by the defendant and duly excepted to at time of said refusal.” It is conceded by counsel for the accused that at least one, if not two, of the instructions referred to in the-foregoing quotation from the motion for a new trial were-properly refused. This being conceded or determined, the-action of the court in this particular will not be further examined, as where, in a motion for a new trial, it is alleged that the court erred in refusing to give a group of instructions, it will be examined or considered no further when it is ascertained that the refusal to give any one of the group of instructions was proper. *(Jenkins v. Mitchell,*40 Neb., 664; *Hedrick v. Strauss,*42 Neb., 485.) The judgment of the district court must be

Affirmed.