Where the prisoner proves that the prosecutrix had accused two other persons of the offense, evidence that subpoenas were issued for these persons and the sheriff returned that they were not to be found, is incompetent. Starnes, 94-973.

Where a witness is impeached, and the impeaching witness testifies that the impeached witness had been accused of larceny, and had run away, it is incompetent to ask whether it was not impossible for one in the station in life of the impeached witness to give bail, with a view of showing that the witness ran away to escape imprisonment. Ib.

Declarations of the prisoner made to the officer on being arrested for the alleged offense, are not admissible as a part of the res gesta. McNair, 93-628.

Where the prisoner sets up a defense that he was under fourteen years of age when the alleged offense was committed, the burden is on him to prove it, and the jury may look on him and judge his age from his appearance.

Ib.

Where defendant introduces evidence as to his good character, it is not competent for the state in reply to show that there was a general rumor in the community of defendant's running after a certain woman. Laxton, 76-216.

It is not error to allow a witness to testify when first examined as to consistent or similar statements made by him to others when such witness is subsequently impeached. Freeman, 100-629.

On the trial for rape it is error to refuse to allow defendant to show by the prosecutrix that she had formerly given birth to a bastard, but such error is cured when the fact is afterwards admitted. Ib.

Where a witness states that he was near and saw what took place between the prosecutrix and the defendant at the time of the alleged assault, and that he saw nothing that looked like an assault, it is competent for the witness to show what he said at the time to another person who was with him as explaining the conduct of the witness in failing to go to the prosecutrix. Huff, 136-679.

Evidence that a witness near by called to the prosecutrix at the time of the alleged assault is competent as showing that she knew the witness was near. Huff, 136-679.

A defendant has the right to cross-examine a witness against him as to the contents of a letter pertinent to the issue written by the witness to the defendant without offering the letter in evidence, since the letter itself is collateral to the issue. Hayes, 138-660.

The defendant had a right to cross-examine the prosecutrix as to the contents of a letter written by her to him after the alleged rape for the purpose of showing that the sexual relations between them were voluntary on her part. Hayes, 138-660.

The prosecutrix may be examined as to the contents of a letter written by her to the defendant after the alleged rape without the letter itself being offered in evidence. Hayes, 138-662.

It is incompetent for the defendant himself to testify that the prosecutrix had been his concubine. Jefferson, 28 (6 Ired.), 307.

It is competent for the state to show that the prosecutrix gave the same account of the crime to a person to whom she related the facts as that given by her on the trial. Marshall, 61–50.

CHARGE. On indictment for rape, there was much and conflicting evidence as to whether there was force employed by the prisoner, or that the connection with the prosecutrix, which was admitted by the prisoner, was with her consent, and the court, after correctly laying down the general principles of the law and calling attention to the contradictory statements of prosecutrix and defendant, charged the jury that the only question was whether

carnal connection was had by force and against the will of the prosecutrix, and that all the other testimony was only competent as bearing on that question: Held, that there was error; the court should have directed the attention of the jury to, and instructed them upon the effect, if believed, of the testimony in respect to the time, place and circumstances surrounding the alleged crime, the conduct of the prosecutrix preceding and immediately following it, her condition as shown soon thereafter, and such other facts as tended to contradict or support her. Boyle, 104-800.

Where the judge in charging the jury in a case of rape expresses his strong indignation that persons in hearing of the alleged violence did not rush to the rescue of the person upon whom it was committed, and also expresses his eagerness and desire to punish them for their cowardice, such expressions amount to an intimation of an opinion on the facts. Brown, 67-435.

An instruction that an alibi is good defense if proven to the satisfaction of the jury, is not objectionable as conveying an intimation that the burden of proving it is on the prisoner. Starnes, 94-973.

The trial judge, in summing up the evidence of the prosecutrix, said: "Whether her testimony be true or false, she testified most positively that the prisoner was the man who committed the rape upon her," and was about to proceed, when his attention was called to the fact that he had failed to state that the prosecutrix had said that she did not know the woman C G, to which the judge replied: "Yes, I believe she did say that": Held, that such a remark was sufficiently responsive to the request of counsel, and did not amount to the expression of an opinion. Freeman, 100—429.

A requested instruction that rape is a most detestable crime, and that the heinousness of the offense may transport the jury and judge with so much indignation that they be overhastily carried to a conviction on insufficient evidence was properly refused. Mehaffey, 132–1062.

EXPRESSION OF OPINION-WHAT IS NOT.-Whether the inference arising from the failure of the prosecutrix to make outcry is repelled by the other concurrent facts, is not a conclusion of law, but a question of fact, and the judge has no right to say that such inference is rendered by such concurring facts of little or no weight. Cone, 46 (1 Jones), 18.

Where the prosecutrix while testifying as to the circumstances of the crime hesitated and wept, it was not error for the court, on directing her to proceed, to add: "You need not use language that will shock your modesty."

Laxton, 78-564.

During the trial certain members of the family of the prosecutrix sat within the bar and occasionally wept during the argument of the prosecuting counsel, but withdrew when the prisoner's counsel addressed the jury: Held, that any action of the trial judge in the matter was within his discretion and not the subject of review. Laxton, 78-564.

When defendant, without the direction or sanction of the court, causes the jailer to bring a prisoner in court to testify, it is not error for the judge to order the witness sent back to jail after testifying. Hairston, 121-579.

JUROR EXCUSED.-The court may excuse a juror, before the jury is empanelled, although he has been passed to the prisoner and has not been challenged for cause. Vick, 132-995.

The least penetration of the person of a female against her will is sufficient to constitute rape. Hargrave, 65–466.

The law does not require that the prosecutrix should use any particular form of words in stating that the prisoner penetrated her body. It is enough if words are used which convey to the jury the idea that the prisoner had

carnal knowledge, or that he penetrated her body, and saying of the prisoner that he "acted with her as a man acts with his wife," and that he had "full connection" with her, is sufficient proof of the penetration. Hodges, 61 (Phil. Law), 231.

The least penetration is sufficient, and the emission of seed is unnecessary. Monds, 130-697.

INFANTS UNDER FOURTEEN CAN NOT COMMIT RAPE.-An infant under the age of fourteen years can not commit rape, nor be guilty of an assault with intent to commit rape. Sam, 60 (Winst. Law), 300.

BURDEN OF PROOF.-Where infancy is relied on as a defense, the burden is on the defendant to show that he was under fourteen years of age. McNair, 93-628.

APPEARANCE OF PRISONER.-The jury may look on the prisoner and judge from his appearance whether he was fourteen years of age when the alleged offense was committed. McNair, 93-628.

5. SILENCE OF PROSECUTRIX.

The inference arising against the truth of a charge of rape from a long ( silence on the part of the female, is not a presumption amounting to a rule of law, but is a matter of fact to be passed on by the jury. Peter, 53 (8 Jones), 19.

The silence, or failure of the female to make outcry immediately after the commission of the offense, is a circumstance tending to show consent on her part, or to impeach hér credibility as a witness, the presumption being that a forcible violation of her person so outrages the female instinct that a woman, not only will make an outery for aid at the time, but will instantly, after its perpetration, seek some one to whom she can make known the injury and give vent to her feelings. Peter, 53 (8 Jones), 19.

The fact that the prosecutrix followed the prisoner into the woods is not conclusive evidence of consent. Marshall, 61-51.

The fact that prosecutrix did not tell her aunt whom she met soon after the commission of the crime does not entitle the defendant to an instruction that her testimony is to be disregarded. Marshall, 61–51.

It is competent for the prosecutrix to testify that immediately after the alleged assault she told her husband and two other persons. Stines, 138— 686.

It is the duty of the state, if it can do so, to show that the prosecutrix made outcry shortly after the occurrence. Stines, 138-687.

But a request to charge that the failure of the prosecutrix to make outcry was "strong" evidence to discredit her is properly modified by omitting the word strong, it being for the jury to determine what weight they will give it. Smith, 138-700.

RAPE OF CHILD.

Sec. 869 (3348). Carnal knowledge of virtuous girls between ten and fourteen years of age.

If any person shall unlawfully carnally know or abuse any female child over ten and under fourteen years of age, who has never before had sexual intercourse with any person, he shall be guilty of a felony and fined or imprisoned in the state's prison, in the discretion of the court.

1895, c. 295.

PUNISHMENT.-Unlawfully to carnally know and abuse a female under the age of ten years constitutes the crime of rape, and one convicted of such crime may be punished by imprisonment in the penitentiary. Dancy, 83–— 608.

INDICTMENT-PROOF.-An indictment for an assault with intent to commit a rape is supported by proof of an assault with intent to unlawfully and carnally know and abuse a female child under ten years of age, though the indictment says nothing about the age. Johnston, 76-209.

INTENT. An indictment which alleges that defendant "did make an assault and did then and there unlawfully attempt to carnally know" the female child, is fatally defective for failure to charge the intent with which the assault was made. Goldston, 103–323.

WHEN AGE MUST BE STATED.-Where the indictment simply charges that the act was with force and against the will of prosecutrix, but fails to state that she was under ten years of age, a charge that the prisoner is guilty if he had unlawful and carnal knowledge of prosecutrix, she being at the time under ten years of age, whether she consented or not, is erroneous. When the act is with the child's consent, her age must be given in the indictment. Johnson, 100-494.

MAN AND WOMAN GUILTY.-A man and a woman are both guilty of abusing and carnally knowing a female child where both caused the child to become drunk and the man had intercourse with the child while the woman held her. Hairston, 121-579.

EVIDENCE-FORMER CONDUCT OF PROSECUTRIX.-On trial of an indictment for rape of a child twelve years of age it was not error to refuse to permit a witness to state that the prosecutrix had proposed to have sexual intercourse with him, when defendant did not propose to show that the witness had actually had intercourse with her. Hairston, 121-579.

CHARGE. Where an indictment contained two counts, one for rape and the other for abusing and carnally knowing a female child, and defendant was convicted of the lesser offense, he can not complain that the judge stated to the jury that the punishment for rape was death and for the other offense imprisonment only. Hairston, 121-579.

NOT NECESSARY TO ALLEGE RAVISHMENT.-It is not necessary to allege that the prisoner ravished the child. Smith, 61–302.

DEPTH OF PENETRATION.-While actual penetration is necessary no particular depth of penetration is required. Smith, 61–302.

CONSTRUCTION OF STATUTE.-The comma after the word "knowing" in the sentence: "And every person who is convicted of unlawfully and carnally knowing, abusing any female child," etc., can not be construed to mean "or." Monds, 130-699.

ABUSE OF GENITAL ORGANS.-It is error to charge that the crime would be complete "if the jury should find that the defendant injured and abused her genital organs." Monds, 130–697.

CORROBORATION.-Where the cross-examination tends to impeach the prosecutrix it is competent for the state to prove a declaration made by her soon after the assault to corroborate her. Brown, 125-606.

PUNISHMENT.-A sentence of ten years in the penitentiary for carnally knowing and abusing a female between ten and fourteen is not unlawful. Rippy, 127-516.

Sec. 870. Audience may be excluded.

That in the trial of cases for rape and of assault with the intention to commit rape, the trial judge may, during the taking of

the testimony of the prosecutrix, exclude from the court-room all persons except the officers of the court, the defendant and those engaged in the trial of the case; and upon the preliminary hearing before a justice of the peace of the offenses above named, that officer may adopt a like course.

1907, c. 21.

Sec. 871 (3639). Rape and buggery; proof.

It shall not be necessary upon the trial of any indictment for the offenses of rape, carnally knowing and abusing any female child under ten years of age, and buggery, to prove the actual emission of seed in order to constitute the offense, but the offense shall be completed upon proof of penetration only.

Code, s. 1105; 1860-1, c. 30.

7. ASSAULT WITH INTENT TO RAPE.

Sec. 872 (3638). Rape, assault with intent to commit.

Every person convicted of an assault with intent to commit a rape upon the body of any female, shall be imprisoned in the state's prison not less than five nor more than fifteen years.

Code, s. 1102; 1868-9, c. 167, s. 3; R. C., c. 107, s. 44; 1823, c. 1229.

NOT NECESSARY TO ALLEGE THAT THE PRISONER WAS A MALE.-On indictment of a person of color for an assault with intent to commit rape, it is not necessary to allege that the accused is a male person. Tom, 47 (2 Jones), 414.

NOT NECESSARY TO ALLEGE THAT THE PROSECUTRIX IS OF THE HUMAN SPECIES. It is not necessary, in an indictment for an assault with intent to commit rape, to allege that the female assaulted was of the human species. Tom, 47 (2 Jones), 414.

CHARGING "INTENTION" INSTEAD OF "INTENT."-An allegation that the assault was made with an "intention" to ravish instead of an "intent" is sufficient. The formality is cured by section 262 (The Code, sec. 1183). Tom, 47 (2 Jones), 414.

JURISDICTION. The superior court has jurisdiction to proceed to judgment where the indictment charges an assault with intent to commit rape, though the jury convict of the assault only. Reaves, 85-553.

PUNISHMENT.-Where the indictment charges an assault with intent to commit rape, and defendant submits for a simple assault, the superior court may pass sentence, but can not imprison defendant for longer than thirty days, nor fine him more than fifty dollars. Johnson, 94-863.

PUNISHMENT ON CONVICTION FOR SIMPLE ASSAULT WITHOUT INJURY.— Where, on indictment for assault with intent to commit rape, the conviction is for a simple assault, and there is no evidence that the prosecutrix suffered from bodily pain at all, the punishment can not exceed a fine of fifty dollars or imprisonment for thirty days. Nash, 109–824.

INTENT MUST BE CLEARLY SHOWN.-The intent is a question of fact for the jury and not for the court, and is a material and essential ingredient of this offense and must be established beyond a reasonable doubt. De Berry, 123-703.