Barney v. People

Caton, C. J. This was an indictment for a rape, of which the prisoner was convicted. The jury was not sworn to try this particular cause, but at the commencement of the term, the whole pannel was called up and sworn to try all causes which might be submitted to it. Although this practice may have prevailed in some of the States, at least in civil causes, it is opposed to the uniform practice in this State, and cannot meet with our approval. With some jurors and in some cases, too much solemnity cannot be observed in the conduct of the trial. The solemnity of calling the juror before the prisoner, in the presence of the court, and his there taking the solemn oath prescribed by the law, to well and truly try and true deliverance make of that prisoner, not only gives the prisoner a comfortable assurance that he is to have a fair and impartial trial, but has a salutary tendency to prepare the mind of the juror for the solemn duty he is assuming. We think the jury should be sworn in each case. The court erred in refusing to give the thirteenth instruction, which is this : “ 13th. If the jury believe, from the evidence, that the husband of the prosecutrix was, at the time the rape is alleged by her to have been committed, an able-bodied man, and was at the said time within a few rods of the said place where the rape is alleged by her to have been committed, that he might easily have heard her had she made any outcry; that the prosecutrix made no outcry; that she and her husband remained for an hour or an hour and a half with the defendant, in a friendly manner, then these circumstances raise a strong presumption that no rape was committed.” This instruction, when considered in connection with the evidence, as to where the husband of the prosecutrix was, and her knowledge of his position, presents a proposition which certainly should have been given to the jury. It is true that it is possible that all the circumstances which are there referred to, were true, and still a rape was committed, but those circumstances must, in all unbiased minds, raise a strong presumption against such a consummation. Some of the other instructions asked by the prisoner, and which were refused, contain in the main correct principles of law, of which the prisoner was entitled to the benefit, but as there may have been some inaccuracy in the terms in which they were expressed, we refrain from commenting on them particularly. The judgment is reversed and the cause remanded. Judgment reversed.