delivered the opinion of the court:
Thе offense charged in this case is assault with intent to commit rape. “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (Rеv. Stat. Crim. Code, chap. 38, div. 1, sec. 20). There is no doubt, that the plaintiff in error here was guilty of taking improper liberties with the prosecutrix, but, upon the question whether he was guilty of an assault upon hеr with a felonious intent to have carnal knowledge of her by force and against her will, the case is an exceedingly close one. In Barr v. People,
As a general rule, consent on the part of an adult woman deprives the act оf the character of an assault, unless her consent has been procured by fraud. (Roscoe’s Crim. Ev.-8th ed.-marg. page 306; 1 Bishop on Crim. Law-7th ed.-sec. 261; 2 id. secs. 35, 36; 1 Am. & Eng. Ency. of Law, p. 784).
Ordinarily, the accused and the рrosecutrix are the only parties who have any actual knowledge of the facts, where the crime charged is rape, or an attempt to commit rape. The conviction, in most cases, is brought about by the testimony of the woman alone. Long ago it was said by Lord Hale in regard to the charge of such a crime, “that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent.” (1 Hale, 635). Accordingly, the testimony of the prosecuting witness must be scrutinized with caution, and, where the defendant denies the crime, her evidence should be corroborated. Her general reputation for chastity may be shown as bearing upon the question of consent. If she made outcry at the. time of the occurrence, or made complaint immediately thereafter, such facts may be shown as corroborating circumstances. (1 Russell’s Law of Crimes, marg. pages 688, 689; State v. Hagerman, supra; 19 Am. & Eng. Ency. of Law, pages 958-963, and cases in notes).
Examined in the light of these principles, the evidence in this record cannot be said to so clearly preponderate in favor of the prosecution as to lead us to the conclusion, that no harm was done by the erroneous admission of the evidence hereinafter referred to. Where the evidence upon the question of guilt is not such, that all honest minds of ordinary intelligence must necessarily come to the same conclusion after giving it proper consideration, the defendant is entitled to have it passed upon by a jury-instructed with substantial accuracy as to the law applicable to it. (Hoge v. People,
The only assignment оf error, which we deem it necessary to notice, is the second. The testimony, therein alleged to have been improperly admitted, is that of Martin Berkins, the husband of the prosecutrix, аnd that of Winnie Dunlevy, both witnesses for the State, as to the complaint made to them by the prosecuting witness after the alleged assault was committed. The testimony of Martin Berkins, which is objeсted to, is as follows: “On the road from your work up to Braum’s you may state if your wife made complaint to you that she had been assaulted. Answer yes or no. (Objection by defendant; overruled; exception). A. Yes, sir. Q. Did she tell who assaulted her? Answer yes or no. (Objection by defendant; overruled; exception). A. Yes, sir. Q. Who was he? (By the court: Simply tell his name). (Objection by defendant; objeсtion overruled; exception). A. Stevens, she says. Q. Was it Stevens, the defendant? (Objection; overruled; exception). A. Yes, sir.”
The testimony of Winnie Dunlevy upon this point, which was objected to, is as follows: “Q. You may state whether or not she made complaint to you that she had been assaulted. Answer that, yes or no. A. Yes, sir. Q. In that complaint did she state who had assaulted her? (Objectiоn; overruled; exception). A. Mr. Stevens.”
The objection to this testimony is, that these witnesses for the State were allowed to say, that Mrs. Berkins told them that Stevens had assaulted her. The statemеnts were made in the absence of Stevens, and, of course, under the ordinary rules of evidence, were mere hearsay. In case of a prosecution for rape, or fоr an assault with intent to commit rape, it may be proven by the testimony of third persons that the prosecutrix made complaint to them, provided such complaint was made as soon as was practicable, or without any inconsistent delay. (3 Green-leaf on Ev. sec. 212). This is an exception to the general rule, that hearsay evidence is inadmissible. The law allows thе exception upon the generous supposition, that a woman thus wronged will be prompted to express her indignation at the injury inflicted upon her. The fact, that the prosecutrix mаde a complaint immediately after the occurrence, is allowed to be proven, because it tends to corroborate her testimony as given on the trial. It is not admitted fоr the purpose of proving the commission of the offense, and cannot be introduced at all if the prosecutrix is not a witness. Accordingly, a witness to the fact of the complаint may state when, where and to whom it was made, but he cannot state the name of the person charged with the offense, nor any of the details of the transaction as communicated by the prosecutrix. On the direct examination the practice has been merely to ask whether she made complaint that such an outrage had been perpetratеd upon her, and to receive in answer only a simple yes or no. If the defendant desires to inquire into the particulars of her narration, he can do so upon cross-examination; or such particulars may be proven by way of confirming her testimony after it has been impeached. (3 Greenleaf on Ev. sec. 213; 1 Russell’s Law of Crimes, marg. page 689; 19 Am. & Eng. Ency. of Law, page 959, and cases in notes ; State v. Jones,
“In Regina v. Osborne, 1 C. & M. 622, (41 E. C. L. 338), after the witness had testified that the prosecutrix made complaint, and charged a particular person with the commission of the rape, it wаs proposed to ask her whose name was mentioned by the prosecutrix, and the court held that it was not permissible.” (State v. Niles,
In Thompson v. State,
While it may be true, as is claimed by counsel for defendant in error, that there are cases which hold to the contrary of the rule above stated, yet, in this State, we have already recognized the doctrine announced by the foregoing authorities as the correct one. In Bean v. People,
Here, Martin Berkins and Winnie Dunlevy were allowed to testify on behalf of the State, not merely that Mrs. Berkins made complaint to them, but that she told thеm, in the absence of plaintiff in error, that plaintiff in error had assaulted her. Clearly this was hearsay evidence and inadmissible under the rule announced. We are unable to,say, that the jury did nоt accept this hearsay testimony, and act upon it, as original and substantive evidence to prove the truth of the statements of the prosecuting witness, and to establish the chargе against the accused. If it had that effect, it operated seriously to his prejudice and injury.
For the error thus indicated, the judgment of the circuit court is reversed and the cause is remanded to that court.
Reversed and remanded.