People v. O'Brien

Criminal Law—Rape—Preventing Resistance—Information—Certainty—Conjunctive Averment.—An information for rape charging that the prosecutrix was prevented from resisting the act “by certain intoxicating, narcotic, and anaesthetic substance,” administered to her by and with the privity of the defendant, is not demurrable for uncertainty by reason of the conjunctive form of the averment, contrary to the disjunctive enumeration in the statute; though it may be, in such cases, that a disjunctive allegation is permissible.

Id.—Unconsciousness of Prosecutrix—Credibility—Province of Jury. The credibility of the testimony of the prosecutrix that she was in a state of unconsciousness before and when the act of sexual intercourse was committed was for the jury to determine, notwithstanding the testimony of other witnesses that she did not appear to be unconscious when she was seen riding with the defendant, and other evidence tending to impeach her character for chastity.

In.—Sufficiency of Evidence to Support Verdict.—Where there was evidence that the defendant repeatedly administered intoxicating liquor to the prosecutrix, and assumed to drive her home thereafter in the evening, arid that after dark, about a mile from the starting place, she was found by witnesses lying on the ground apparently insensible, and was helped into the wagon at the defendant’s request, and was taken home in an unconscious state and it appeared that some one had had intercourse with her, and there was other evidence pointing to the defendant as the guilty • party, the verdict of guilty cannot be disturbed upon appeal for insufficiency of the evidence to support it.

Id.—Evidence—Loaded Pistol Taken from Defendant.—Evidence is not admissible- to show that several days after the alleged offense a loaded pistol was taken from the defendant by the relatives of the prosecutrix; nor is such pistol admissible in evidence as an exhibit.

Id.—Previous Chastity of Prosecutrix—Evidence in Chief—Inference—Rebuttal.—It is not admissible for the prosecutrix to testify upon her examination in chief that prior to the .occasion of the alleged offense she had never had sexual intercourse with anyone. The previous chastity of the prosecutrix should he inferred by the jury in the absence of evidence to the contrary, and can only be proved by way of rebuttal of attacking evidence.

Id.—Instruction Upon Presumption of Chastity—Province of Jury— Inference—Presumption of Innocence.—It is error to instruct the jury, upon a prosecution for rape, that “the law presumes a woman to be chaste until the contrary is shown.” There may be an inference of previous chastity, and the jury should infer it in the absence of evidence; but the jury is the exclusive judge of the weight and validity of the inference. But there can he no legal presumption of chastity against the presumption of innocence, which must prevail until guilt is proved beyond a reasonable doubt.

Id.— Improper Basis of Instruction — Language Omitted from Published Opinion—Presumption.—An instruction to the effect that the jury may find on the presumption of chastity against the declarations of any number of witnesses that did not produce conviction in their minds is improperly based on the supposed authority of language used in an opinion, which was omitted in the final publication thereof. It must be presumed that the omission was intentional.