195 Mich. 274 | Mich. | 1917
Respondent has been convicted of rape. The proceedings which resulted in his conviction are reviewed upon a record which contains the testimony given at the trial, the motion for a new trial, which was denied, and the exceptions taken and relied upon are discussed under the following headings:
“ (1) The admissibility of evidence proving or tending to prove the commission of a former act or offense for the purpose of showing probable commission of the act charged.
“(2) Did the court err in overruling respondent’s motion to strike out of the answer of the witness Hazel Martin the following language: T was so sleepy I could hardly undress.’
“ (3) The right of the people to show that the complaining witness Hazel Martin complained to her mother as to the alleged offense on the day following the day alleged in the information.
*276 “(4) Did the court err in permitting the sheriff to escort eight ladies into the courtroom and seat them immediately behind and, within close proximity to the prosecutrix while she was giving her testimony, and while there was room for the ladies to be seated with the rest of the audience?
“(5) Admissibility of evidence on the part of the people as to the health of the prosecutrix prior to coming to Big Rapids.
“(6) Did the court err in permitting the witness Dr. Karschner to answer the following question: ‘What would be the result of a tampon treatment upon the hymen?’
“(7) The admissibility of evidence as to the effect of the falling of the womb upon the general health and nervous condition of a girl 18 years and 8 months old.
“(8) Respondent’s requests to charge.
“(9) The motion for a new trial made on the part of the respondent should have been granted by the court.”
The prosecuting witness was more than 18, less than 19, years old. The court instructed the jury that the people must prove, not only the act of sexual intercourse, but beyond a reasonable doubt and to a moral certainty that there was “the utmost reluctance and resistance” on the part of the prosecutrix, that, if she consented to the act during any part of it, there was not the opposing will necessary to be established in order to convict, and that it was not claimed that respondent accomplished what he did by threat or physical violence, or that the prosecutrix was overcome by fear. Again the court said that to convict the jury must be satisfied beyond a reasonable doubt that the prosecutrix did everything she could do under the circumstances to prevent the respondent from accomplishing his purpose. “If she did not do that, it is not rape.”
Testimony for the people tended to prove that the prosecutrix and the. respondent occupied adjoining
We accept the statement of the trial judge that other
No reversible error is made to appear, and the judgment is affirmed.