24 Del. 96 | Delaware Court of Oyer and Terminer | 1909
charging the jury:
Gentlemen of the jury:—It is charged in this indictment that George Colombo, the prisoner at the bar, on the second day of March of the present year, in this City and County, violently and feloniously did make an assault on one Mary Lefkowicy, and her did violently, forcibly and against her will feloniously ravish and carnally know. The offense charged is that which is commonly known as rape.
We have been asked by the defendant to direct you to return a verdict of not guilty, for the reason that the law respecting the crime of rape, prior to the year 1898, was repealed by an Act passed by the Legislature in that year, entitled “An Act for the Better Protection of Female Children,” being Chapter 686, Volume 18, Laws of Delaware.
We decline to so direct you, because we are of the opinion that the statute referred to did not repeal or in anywise affect the existing law respecting the crime of rape.
We say to you that while a certain day is stated in the indictment, upon which the crime is alleged to have been committed by the defendant, such date is not material, and it is not
Rape in this State has been held to be the carnal knowledge of a woman by force and against her will. Force, either actual or presumptive, is, in legal contemplation, an essential and indispensable element of rape, whether it be committed on a female over or under the age of consent. Upon proof of carnal penetration of a female of the age of consent—that is, of seven years of age or more in this State—the burden is upon the prosecution to further prove to the satisfaction of the jury beyond a reasonable doubt, that the penetration was consummated by force and against her will, dr by putting her in great fear and terror, before a conviction of rape can be had.
A rape can only be committed against the will of the female and by force, or by putting her in great fear and terror; and if sexual connection is obtained by milder means, or in any other way with the consent or silent submission of the party, it cannot constitute the crime of rape in contemplation of law. When the fact appears that sexual connection has been had against the consent of the woman, the law implies force.
Formerly, "in a prosecution for rape, it was necessary for the State to prove not only an actual penetration but also the actual emissio seminis, in order to constitute a carnal knowledge; but it is now the law of this State that in a prosecution for rape it should not be necessary to prove the actual emissio seminis, in order to constitute a carnal knowledge, but the carnal knowledge shall be deemed complete upon proof of an actual penetravit.
But while it is not necessary under the law for the State to prove more than an actual penetravit, and while the slightest penetration is sufficient, yet it must be shown beyond a reasonable -doubt that there was an actual penetration, at least proof of some degree of entrance of the male organ within the labia
So we say that before you can find the prisoner guilty in this case, you must be satisfied beyond a reasonable doubt from the evidence, first, that the alleged rape was actually committed; and if so, in the second place, that it was committed by the prisoner at the bar, by force and against the will of the prosecutrix. Force is an essential element in the crime of rape, and must be proved beyond a reasonable doubt, to warrant conviction.
In determining whether the crime of rape, with which the prisoner is charged, was committed, you should carefully consider all the testimony, and whether from that testimony the child upon whom the assault is alleged to have been committed, acted at or about the time as one of her age, condition and surroundings would naturally and probably have acted if she had been assaulted as charged in the indictment. In this connection, for the purpose of reaching a conclusion you may take into consideration the place and time of the alleged assault; any outcries or resistance made by the prosecuting witness, or the absence of outcries or resistance; the proximity of other people, if it appear from the testimony that there were persons sufficiently near at the time to hear or to know of such outcries, or resistance, if any were made; and you should also take into consideration the testimony respecting any complaint or mention of the assault made by the prosecuting witness, when it was made, if made at all, to whom it was made or not made, and how soon after the alleged assault it was made. We mean by this that you may consider all such facts and circumstances as shown by the testimony, in order to satisfy yourselves whether the testimony respecting the guilt of the prisoner is or is not true.
If you believe from the evidence in this case beyond a reasonable doubt that the prisoner did have sexual intercourse with the prosecuting witness, within the time we have mentioned, and
The prisoner has introduced testimony in his defense to establish what is called an alibi; that is to say, testimony which is intended to prove that at the time the offense is alleged to have been committed the prisoner was elsewhere than at the place where the crime is alleged to have been committed. You should carefully consider this testimony, as well as the other testimony in the case, in determining whether the prisoner is guilty of the offense charged in the indictment, or not guilty.
In the discharge of your duty, gentlemen, you should not be swayed or influenced by any consideration of the punishment which may follow conviction. It is your duty to determine and by your verdict declare whether the prisoner, under the evidence you have heard, is guilty or not guilty of the crime charged in the indictment.
But, gentlemen of the jury, we say to you in conclusion, that in every criminal case the defendant is clothed with the presumption of innocence; and it is incumbent upon the State in order to secure conviction, to prove every material element or ingredient to your satisfaction beyond a reasonable doubt. If after carefully and conscientiously considering and weighing all the evidence in the case you should entertain a reasonable doubt of the prisoner’s guilt, that doubt must inure to his benefit, and your verdict should be not guilty.
In cases where the evidence is conflicting, it is the duty of the jury to reconcile,that conflict if they can. But if they cannot do so, they should accept the testimony which they think under all the facts and circumsances of the case is most worthy of credit and belief.
Verdict, guilty.