No. 48 | Delaware Court of Oyer and Terminer | May 15, 1911
The court are unanimously of the opinion that in the question propounded to the prosecuting witness, whom this witness is called to contradict, the ground was not properly laid; and we think the failure of the state to then object to the
charging the jury:
Gentlemen of the jury:—The indictment in this casé contains two counts—the one charging that the prisoner at the bar, Bennett A. Williams, did violently and feloniously make an assault upon Laura Clichener, the prosecuting witness, and her the said Laura Clichener did violently, forcibly and against her will feloniously ravish and carnally know.
It is charged in the other count that a certain person unknown to the grand jurors made such felonious assault upon the prosecuting witness, and that the prisoner was present at the time of the commission of the felonious assault, abetting, procuring, commanding and counseling the said certain person to the grand jurors unknown.
The prisoner denies that he either committed any assault upon the prosecuting witness, or that he abetted, procured, commanded or counseled any person to commit the assault charged. The crime charged is that which is commonly known as rape, and is claimed by the state to have been committed by the prisoner about half-past ten o’clock on the night of the twenty-fifth of January of the present year, in Brandywine Park in this city and county.
[3-5] Rape is 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. Upon proof of the carnal penetration the burden is upon the state to further prove to the satisfaction of the jury, beyond a reasonable doubt, that the penetration was consummated or effected by force and against the will of the prosecutrix, or by putting her in great fear and terror, before a conviction can be had. If sexual intercourse is obtained by milder means, or with the consent or silent submission of the female, it cannot constitute the crime of rape
[6] 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 is .not necessary to prove the emissio seminis, in order to constitute a carnal knowledge. The carnal knowledge is deemed complete upon proof of an actual penetravit.
[7] 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 pudendum, that is, the private parts of the female. And it must be also proved to the satisfaction of the jury beyond a reasonable doubt, that such penetration was made without the consent of the female. In cases where the evidence is conflicting, the jury should reconcile the conflict if they can, but if they cannot do so, they should accept that testimony which they think under all the facts and circumstances of the case is most worthy of credit and belief.
[8] The good reputation of the accused, when proved, is to be taken in connection with the other evidence in the case, and is to be given such weight as in the judgment of the jury it is entitled to.
[9] The reputation of the prosecuting witness for immorality and unchastity, when proved, is to be considered so far as it may have any bearing upon the question of consent of the prosecuting witness,-if you find that the accused did have sexual intercourse with her.
If you believe from the evidence in the case beyond a reasonable doubt that the prisoner did have sexual intercourse with the prosecuting witness, as alleged in the indictment, and that such sexual intercourse was had by force and against the will of the prosecuting witness, your verdict should be guilty. And in the event of such a verdict you may recommend the defendant to mercy if it seems proper to you to do so.
If, therefore, gentlemen of the jury, you should not be satisfied that the prisoner committed the felonious assault, or rape, charged, but do believe beyond a reasonable doubt, that such a crime was committed by some other person, and also believe beyond a reasonable doubt that the prisoner was present at the time abetting, procuring, commanding or counseling such other person in the commission of such crime, he would be as guilty as the person who actually committed the crime.
[11] In conclusion, we say that in any criminal case, the accused is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt. If, after carefully and conscientiously considering and weighing all the evidence in this case, you should entertain a reasonable doubt of the guilt of the prisoner, that doubt must enure to his benefit and your verdict should be not guilty. [12] But by such a doubt is not meant a vague, speculative or mere possible doubt, but a real, substantial doubt that remains after a careful consideration of all the evidence, and such a doubt as reasonable, fair-minded and conscientious men would entertain under all the facts and circumstances of the case.
Verdict, not guilty.