#### Showalter, Plaintiff in error, vs. The State, Defendant in error.

*February 2*

February *20, 1912.*

*Rape: Nonconsent: Degree of resistance: Evidence: Leading questions: Instructions to jury: Appeal: Harmless errors.*

1. Evidence on a trial for rape *held*sufficiently to show that the complaining witness resisted to the utmost and made every reasonable effort in her power to prevent the violation of her person.

*2.*Permitting the district attorney to propound leading questions *to*the complaining witness was not prejudicial error in this case, no objection thereto having been made by defendant’s counsel and the facts covered by such questions having also been testified to by such witness in response to questions not leading in form.

3. Instructions as to the degree of resistance required to show non-consent: “There can be no rape of a female where there is consent, no matter how reluctantly it be given. To constitute rape the connection must be against her will, and there must be the utmost' reluctance and resistance on her part, or her will must be overcome by fear and terror so extreme as to preclude resistance,” — state the law correctly.

ERROR to review a judgment of the circuit court for Grant county: George Cxemewtson, Circuit Judge.

*Affirmed.*

The plaintiff in error, hereafter referred to as the defendant, was convicted on October 20, 1910, on an information charging him with having committed the crime of rape upon the person of one Mary Eraizer, the complaining witness, on the 24th day of September, 1910.

The complaining witness testified to the following effect: She was a widow sixty-five years of age at the time of the alleged assault. Por a little more than a year ending in April, 1910, the defendant had hoarded and during the cold weather roomed at her home. He was a horse trainer, and during the warm weather slept on the fair grounds, which were close to her home. On the night of September 23,1910, *451sbe was alone. It was a rainy and stormy night. At about 11 o’clock sbe was awakened by some one walking around tbe bouse and trying tbe doors and windows. She went to a window and asked who was there and the defendant gave bis name, asked if sbe was alone, and said be wanted to get in. He-was told be could not get into tbe bouse that nigbt. Tbe defendant persisted in trying to get in at tbe doors and windows and tbe complaining witness became frightened, went to different windows of tbe bouse, raised them, and called for help to different neighbors. Tbe defendant then threatened to shoot her through tbe window if sbe screamed again. Presently tbe defendant went around tbe bouse and opened tbe cellar door and went down into tbe cellar way. While be was down in tbe cellar way trying tbe door tbe complaining witness bad put on some clothes and thrown a shawl over her bead. Sbe opened tbe front door and went out, locking tbe door after her. Sbe ran over to tbe kitchen door of a neighbor’s bouse, rapped upon it and called tbe name of tbe neighbor, but no one came to let her in. While sbe was at tbe door sbe beard some one walking or running, and on looking around saw tbe defendant almost-upon her. Sbe ran screaming around tbe bouse and was caught by him in front of tbe house. Sbe was held tightly with one arm and band while be placed tbe other band over her mouth and nose, tbe thumb-being forced into her mouth under the plate of her false teeth. In tbe struggle her eye glasses were bent out of shape and knocked off. Tbe defendant then dragged and pulled her over onto tbe porch of her bouse, took tbe key from her, opened the door, pushed and dragged her into the bouse, locked the-door, and put tbe bey in his pocket. Tbe.complainant testified that sbe screamed as long as sbe was able and that this-was tbe reason tbe defendant put bis band over her mouth. After they were in tbe bouse tbe defendant held her fast while they went into tbe back part of the bouse. Sbe suffered from thirst and tbe defendant permitted her to get a *452drink of water. He then grasped her and pulled and dragged her np stairs and into a room, looked the door, and proceeded to take off his clothes. She observed him removing his clothing and removed the wet shawl she had worn out in the rain. She testified that she was then afraid to scream for fear that she would not be allowed to live. He then took off her shoes and stockings, removed her skirts, and threw her upon the bed. She testified that she pushed him away as long as she had strength and that she was exhausted and almost terrorized by feár. He then tried to have intercourse with her, but failed because she was not in a suitable position. He then took her by the feet and dragged her into position and then accomplished the act of sexual intercourse. After the act. he allowed her to get np. She got some clothes, crawled down stairs and dressed herself, went into the cellar way, locked the door between it and the dining room, and stayed there from 2 o’clock until nearly 6 in the morning. She testified that she was afraid to go out for fear the defendant would hear her, follow and overtake her, misuse her again and probably kill her, and she was afraid to go out when there was nobody moving on the streets. Shortly before 6 she went to the house of the neighbor at whose door she had knocked during the night, and on being admitted told him what had occurred. While she was at this house the defendant left her house and she shortly went home. About 11 o’clock she was driven down to a justice’s office and made the complaint. She was confined to her bed for two days. She says she slept very little for four nights thereafter. The skin on her nose was broken, the membrane of the mouth was .abrased and broken by the defendant’s thumb, there was an abrasion on her arm and a large bruise on the calf of her leg.

There was evidence that the cries of the complainant were-heard by one person from an eighth to a quarter of a mile away and by another person three blocks away. The neighbor to whose home she went in the morning, another neighbor who came in later and who took her down to the justice’s of*453fice, and tbe justice, all testified tbat sbe was very nervous and excited. Her nearest neighbor testified tbat when sbe came to bis bouse in tbe morning sbe looked like a crazy woman and tbat be hesitated to let her in. Sbe was permitted to testify as to what sbe stated to some of these persons. A physician testified to tbe bruises and to tbe very nervous state of tbe complainant.

Tbe defendant was arrested on October 7, 1910, in another county, where be bad been traced by tbe officers.

Tbe defendant prosecutes this writ 'to review tbe trial wherein be was found guilty as charged in tbe information and sentenced to tbe state prison for tbe term of fourteen years.

Eor tbe plaintiff in error tbe cause was submitted on tbe brief of *John Courtney.*

Eor tbe defendant in error there was a brief by tbe *Attorney*General, *Russell*Jackson, deputy attorney general, and *George B. Glementson,*district attorney, and oral argument by *Mr. Jackson.*

Siebecker, J.

Tbe contention is made tbat tbe evidence does not sustain tbe verdict finding tbe defendant guilty of tbe crime charged. , Tbe claim is tbat tbe evidence fails to establish tbat tbe defendant bad sexual intercourse with tbe complaining witness by force and against her will. Tbe foregoing statement contains a statement of tbe facts which her evidence tends to prove and which tbe other facts and circumstances of tbe case corroborate in material and essential points. Tbe claim tbat portions of her evidence show tbat sbe did not employ all available means at her command to repel defendant’s attack and to prevent him from ravishing her person is based on parts of her evidence disassociated from other facts testified to by her which explain those statements. They must be read together. When considered as a whole, the evidence furnishes abundant proof to warrant tbe jury in concluding tbat sbe resisted him to tbe utmost and at no time vol*454untarily submitted to tbe violation of ber person. We are cited particularly to tbe statements sbe made tbat after sbe bad been assaulted and dragged to ber bedroom sbe ceased striking, kicking, and making other like resistance to bis assault. It is manifest from ber evidence tbat ber physical powers bad then been exhausted by reason of tbe prolonged struggle, to tbe point of incapacitating ber to effectually resist bis attack, and tbat sbe was then so terrified in mind as to be well nigh incapable of continuing ber resistance to repel him. Tbe evidence amply sustains tbe conclusion of tbe jury. It shows tbe utmost reluctance on ber part and tbat sbe made every reasonable effort within ber power to prevent him from accomplishing bis purpose. We consider tbat tbe evidence fully sustains tbe verdict.

It is claimed tbat tbe court erred in permitting tbe district attorney to conduct tbe examination of tbe state witnesses in an illegal and highly prejudicial'manner. Defendant was represented by counsel. No objection was taken on tbe trial to tbe procedure now complained of, and we find nothing in tbe record justifying any claim tbat counsel representing tbe defendant at tbe trial was derelict in bis duty in not interposing objection to leading questions now brought to our atten- • tion. True, as appears, tbe prosecuting attorney propounded leading questions to tbe complaining witness concerning matters as to which sbe exhibited no reluctance to testify and which sbe was able to state to tbe jury by narrating tbe facts in the manner witnesses usually narrate them without suggestion from court or counsel. This, however, does not in itself show tbat tbe defendant’s best interests on tbe trial were not subserved by omitting to object to this course of procedure. Tbe manner of conducting trials is so subtle in its effects tbat those, in charge of them are far better able to determine whether tbe rights of parties are being prejudiced than persons not participating, and we doubt not tbat tbe defendant’s counsel bad good reasons for permitting tbe examinations to proceed as they did, though tbe questions propounded were *455technically objectionable as leading. It is also well settled that a trial court may in its discretion permit such a course of procedure if it promotes tbe ends of justice and does not thereby deprive a defendant of any of his legal rights. An examination of the evidence discloses also that the facts embraced in the leading questions now complained of were testified to by the complaining witness-in response to inquiries not leading in form. Under the circumstances we discover no prejudicial results to defendant’s rights in this respect. The implication of these complaints respecting the conduct of the court and the defendant’s counsel on the trial has called for these observations though no exceptions respecting them are preserved in the record.

It is further contended that the instructions of the court in submitting the case to the jury were prejudicially erroneous as regards the presumption of innocence, as to informing them of the penalty prescribed for an offense like this, the degree of resistance required by the female to show nonconsent, and as to a portion of the instructions assuming essential facts at issue as established by the evidence. These exceptions to the charge are not well taken. The court properly informed the jury of all the essential ingredients of the crime charged, and instructed them that in law the defendant was presumed to be innocent and that they would not be warranted in finding him guilty unless guilt were proven beyond a reasonable doubt. As- to the degree of resistance required of the party thus assaulted the jury were told that:

> ■ “There can be no rape of a female where there is consent, no matter how reluctantly it be given. To constitute rape the connection must be against her will, and there must be the utmost reluctance and resistance on her part, or her will must be overcome by fear and terror so extreme as to preclude resistance.”

The instructions on the foregoing features of the case, as well as those pertaining to the presumption of innocence and the burden of proof, state the law. correctly. They twere *456couched in plain and clear language and manifestly informed the jury of the law and of their duty in determining the issues submitted. Nor do we find that the court improperly assumed as proven any controverted facts which were for determination by the jury.

The record sustains the verdict and no reversible errors intervened.

*By the Court.*— Judgment affirmed.