#### STATE *vs.*JOSIAH CONE.

Whether the inference against the credit of a female witness, called to prove a rape, arising from her failure to make outcry, is repelled by the other concurring facts, is not a conclusion of law, but a question of fact. Hence, a Judge has no right to say that such inference is rendered by such concurring facts of little or no weight.

INDICTMENT for a Rape, tried at Fall Term, 1858, of Johnston Superior Court, before his Honor Judge Manly.

The female upon whom the violence was alledged to have been committed, was one Martha Cone,’ the daughter of the prisoner, about 17 years old, delicate in person, uneducated and ignorant, and residing with her father. Her mother had died in her early infancy, and her father had married a second time. She had a brother, Jesse, aged about 19, small in stature for his years. This girl testified, that, on the night in question, the prisoner, returned home under the influence of spirits, quarrelled with his wife, and drove her with threats and a drawn knife out of the house, and closed the door against her; that there were left in the house the prisoner,the girl Martha, and her brother Jesse; that her father appeared to be in a great rage: after some time her brother Jesse laid down to sleep on a pallet, and after a little while she proposed to lay down also; when the prisoner approached her with a drawn knife in his hand, put his arm about her, and proposed to have sexual intercourse with her. She refused. He threatened to kill her if she made any resistance or noise, or told any one. She still refused, and after a few moments laid down by the side of her brother. *19The prisoner put out the light, and by pressing down her body and confining her arms, succeeded in having his will of her. She stated she made no effort to awaken her brother by outcry or otherwise, because she knew he could afford her no relief, and she was afraid her father would execute- his threat of killing her if she did. She stated, also, that, about three- years before the trial, before her father’s last marriage, she had gone into the neighborhood to visit a factory, and her father came after her, and on their way home, in the night time, he took her out on the road side and forced her to his will. That, on another occasion, since the act relied on by the State (in June last), the prisoner intercepted her on a visit to a neighbor’s, and forced her. On the day before she complained to the Justice of the Peace (17th June), he again attempted to force her, but was interrupted by a noise as of some one approaching.

The brother, Jos.so, was called for the defence, who stated that his father had come home that night intoxicated ; had quarrelled with his wife, driven her away and shut the door upon her; that the witness laid doAvn to sleep, and shortly thereafter his sister, the other witness, laid down beside him, and he did not not see or hear anything ’till next morning.

After other instructions given to the' Jury, which are not excepted to, his Plonor remarked as follows :

“ The making of no outcry by the girl, at the time of the carnal connexion, under ordinary circumstances, is strong-evidence to discredit the force ; but, when the relation between the parties, and the friendless and ignorant condition of the sufferer accounts for this silence, it should have little or no weight: the rape is alledged to have been committed on a, pallet, when the girl was by the side of her brother, (the wife having been driven, a little before, out of the house;) whether failure to waken her brother, or make an outcry for the wife, is sufficiently accounted for, except upon the supposition she was consenting to it, is submitted as a question of fact, to be tried by a scrutiny of all the circumstances.”

*20The jury having rendered a verdict against the prisoner, a Rule for a *venire de novo*was moved for, on account of misdirection of the Court in the above instructions. Rule discharged, and an appeal to this Court.

*Attorney*Gfeneral, for the State.

*Miller,*for defendant.

Pearson, J.

Incest is so detestable, that it is hard to resist the feeling, that one .guilty of it ought to be convicted, whether it was done with ••consent or by violence.

The law makes a distinction, and every individual, however low he may have fallen, has a right to be tried according to law.

His Honor puts in quotation a portion of the charge, and we are to take it as setting out the very words used by him. This relieves us from all difficulty as to the question intended to be made. The quotation embraces two topics, which are put in opposition and treated differently: 1st. The making of no outcry, and the long ixrterval before -disclosure. 2nd. The failure to waken her brother or call for her step-mother. The latter “is submitted to the jury *as a question of fact,*to be tried by a scrutiny of all the circumstances.” The former is treated as involving a rule of law, about which his Honor thought it to be his -duty to instruct the jury. The inference, that he supposed there was this difference, is clear, and we have no idea that ho expressed his opinion as to the weight of the evidence, except in conformity to what he believed to be a rule of law, applicable to the first topic.

“ Making no outcry, and the long interval before disclosure, under ordinary circumstances, is *strong evidence*to discredit (the witness in regard to) the forco. ” This is stated as a rule of law. It was in favor of the prisoner, and is alluded to, as tending to explain the next proposition. “ Rut, when the relation between the parties, and the .friendless *21and ignorant condition of the *sufferer*accounts for the silence, *it should have little or no weight.”*This is also stated as a rule of law. It was against the prisoner, and his exception must be sustained, unless there be such a rule..

We are not aware of any such rule of law; in fact, from the nature of things, there cannot be a rule; for, from the varying circumstances of every case of the kind, the matter cannot be reduced to a fixed principle, so as to form a rule, and must be left to the consideration of the jury, as an open question of fact. In this respect, we can see no difference between the matters embraced by the first and second topics. Both, together with the additional circumstances, that the witness (according to her account) had been forced three years before, and had made no outcry or disclosure, ought to have been put on the same footing, and submitted to the-jury. It was for the jury to say which was strong evidence, and which was entitled to little or no weight, and to- decide whether the witness was a friendless and ignorant sufferer, (as his Honor inadvertently assumed her to be,) or a degraded being, seeking to hide her shame by adding to it it the guilt > of perjury, with instructions; that, if, after a careful examination of -the case in every aspect, they could not satisfy themselves whether she was entitled to be believed or not, they ought to acquit; for his guilt depended upon the truth of her testimony.

Lord Hale, in his Pleas of the Crown, 1st vol. 633, treats of the evidence upon an indictment for rape, and after stating that much depended upon the testimony of the party ravished, remarks: “ Her credibility, and how far forth she is “ to be believed, must be left to the jury, and is more or less “ credible,” according to the circumstances. “If she presently “ discover the offence and make pursuit after the offender,” “ &c., “these and the like circumstances give greater proba- “ bility to her testimony.” “But, if she conceal the injury “ for any considerable time after sho had opportunity to. *22“complain,” &c., &c., “these and the like circumstances “ carry a strong presumption that her testimony is false or “feigned.” He is followed by East, with the exception, that the concluding sentence is changed, so as to read, “ these and the like circumstances create a strong, but not “ a conclusive presumption, that her testimony is feigned.”' East is followed by BlacestoNE and Russell.

It would seem upon the first blush that these authors intend to lay it down as a rule of law, that circumstances of the former kind give greater probability to the testimony, and those of the latter kind raise ‘ a strong presumption of falsehood; but, upon examination, it will be found they make these remarks merely as suggestions for the consideration of juries, and give their opinion, how far they ought to have greater or less weight. There is no doubt a Judge in England would tell the jury, that this or that circumstance gave greater probability to the testimony of a witness, or that it created a strong presumption that it was false. In our Courts it is different; 'the Statute changes the law in this particular, and a Judge here is not at liberty to give his opinion as to the weight of -evidence, unless the weight to which it is entitled is fixed by some rule of law; e. g. that from thirty years adverse possession of land, the jury ought to presume a grant.

This makes it necessary to distinguish between rules of law and mere considerations, that are to be taken into the account by the juries, when weighing the evidence. It is sometimes difficult to draw the distinction. There are instances of a mere matter of evidence growing into a rule of law, by not taking the distinction, and by the recognition of it, as a rule of law, in repeated decisions. The rule, that when goods are stolen, one foupd immediately thereafter in the possession, who is unable to occount how he came by them, is presumed to have stolen them, is a,n instance of it. At first, it was a circumstance to be considered by the jury, *23now it is a rule of law. We are not disposed to add another to the list of rules made by judicial legislation.

It may not be a matter of regret, that this case 'is to be tried again. The fact, that a father should, on three several occasions, ravish his own daughter, and attempt it a fourth time, .and that .the indictment should nharge the second offence, making no mention of the others, presents a case fit to be submitted to .the dispassionate consideration of a second jury.

There must be a *venire .de novo.*Judgment reversed.