State v. Hartigan

Kellogg, J. The information against the respondent in this case contained two counts, the first charging him with the com-, mission of the crime of rape upon one Orilla Vincent, and the second charging him with an assault upon the same woman with intent to commit rape upon her. On 'trial the respondent was acquitted on the first count, and convicted on the second count. The evidence on the trial is detailed in the respondent’s exceptions, and the court instructed the jury that if they found that the respondent, upon the occasion when, as it was alleged and testified to by the woman Vincent, each of the said crimes was committed, laid hold of her person, and pushed her, as stated in her testimony, with the intention and for the purpose of having sexual intercourse with her by'force and against her will, and that she resisted for a time, but ultimately yielded, they might find him guilty under the second count, although they might find that the sexual connection then had by him with her, which followed, was with her consent. The respondent excepted to the charge of the cour-t on this point. Whatever might be our opinion respecting the sufficiency of the evidence to warrant a conviction of the respondent on either count, our duty at this time is to be confined to the examination of the errors assigned in the charge of the court to the jury, to which the respondent’s exceptions exclusively relate. It is an assumption of the very point in controversy to say that the facts given in evidence constitute one entire transaction, and that as the jury have acquitted the respondent of the greater offence, he cannot be convicted of a lesser one on testimony which was a part of the evidence introduced to establish his guilt of the [611] greater offence. The jury have found by their verdict that the respondent did, on the occasion testified to, assault the woman with the intention and for the purpose of having sexual intercourse with her by force and against her will, and that she resisted for a time, although she ultimately yielded. These facts are all which are essential to be established in order to make out the proof that the crime was complete. And we consider that the charge of the court in respect to the resistance of the woman referred by reasonable intendment to a real resistance on her part, made in earnest and good faith, and that the charge, so understood, was all which could be required on that point. But it is claimed that the subsequent yielding and consent of the woman to the sexual intercourse, which followed, has relation, back to, and covers the preceding acts ; or, stated in equivalent words, that the ultimate consent of the woman should have a retro-active effect, by relation, and operate as a condonation of a crime which had become complete. The rules of criminal law ar,e not founded upon legal fictions, and the doctrine of relation, however useful it may be as a rule defining or regulating private rights in a civil suit, has no application in criminal proceedings. On this point the rule, as stated in 3 Greenleaf’s Evidence, sec. 211, is that if the woman was first violated and afterwards forgave the ravisher and consented to the act, still the particular offence in question being committed by force and against her will at the time of its commission, the crime is in legal estimation completed ; these circumstances being only admissible in evidence on the part of the respondent to disprove the allegation of the want of consent. The same ruléis stated in 1 Russell on Crimes, 677, and also in Roscoe’s Criminal Evidence, 860. It has never been regarded as a legal excuse for the consummated offence that the woman consented after the fact, and we regard this principle as being applicable to the case of an assault with an intent to commit a rape as well as to the higher offence. It is, in our judgment, decisive of the questions raised in this case, and as we find no error in the instructions given by the court to the jury, the respondent’s exceptions are overruled. On the application of the respondent the case was remanded to the county court to pass sentence.