People v. Jacobs

ALLEN, P. J.

Defendant was convicted of rape, the prosecuting witness being under the age of consent. From the judgment defendant appeals.

There is no merit in appellant’s contention that the crime and defendant’s connection therewith was not established. The evidence of the prosecuting witness, read in connection with that of a physician, warranted the jury in its verdict. While certain statements of the prosecuting witness were contradictory and others recounted matters highly improbable, nevertheless, the questions of fact were for the jury, and with its determination we must remain content.

The court properly refused an instruction embodying statements with reference to the evidence of a particular witness. It had already given a general instruction as to the right of the jury to disregard the whole uncorroborated testimony of any witness whom they believed had testified falsely. This covered the ground and embraced all that defendant was entitled to in the premises.

The court did not err in refusing an instruction to the effect that opportunity to make complaint to the mother and failure to do so for an unreasonable time, where no threat was shown by defendant, was a circumstance to be considered as tending to show the improbability of the commission of the

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offense. The admission of evidence tending to show statements concerning the outrage made at the first opportunity, where the victim was of consent age, has always been permitted as tending to show that she was an unwilling victim, and has been regarded as original evidence; and the fact that no outcry was made when other parties were known to be near, or no complaint made, has been received in evidence and regarded as a circumstance proper to be shown as affecting the question of willingness or unwillingness upon the part of the victim. In cases, however, where the willingness of the prosecuting witness is immaterial by reason of inability to consent, the matters involved in outcry or complaint have no significance. Neither was there error in refusing the fourth instruction offered by defendant, there being no evidence presented warranting the same. Evidence of other acts of sexual intercourse between the parties prior to the date set out in the information was admissible as tending to prove the main allegation.