The opinion of the court 'was delivered by
The defendant was convicted of statutory rape, and appeals.
The evidence, which will not be recited, was sufficient to establish all the necessary elements of the crime. Testimony of other acts was properly allowed to stand, as showing the relations existing between the parties and their disposition toward each other. Other testimony complained of was properly admitted.
There was both direct and circumstantial evidence tending to establish guilt. While the instruction relating to conviction on circumstantial evidence alone might properly have been omitted, it did not prejudice the defendant to give it. When all the instructions are read together, as they must be, none of them is open to the charge of indefiniteness or incompleteness. Failure of the complaining witness to make prompt outcry or complaint merely tends to show consent, or lack of the use of outraging force, and is not of sufficient importance to be made the subject of a special instruction in a case of statutory rape. An instruction on the subject of attempt was waived by failure to request it, was not pertinent to the evidence, and became immaterial when the jury found the defendant guilty of the completed offense on satisfying evidence.
The judgment of the district court is affirmed.