§ 3097. Resistance.-The amount of resistance required depends upon the relative strength of the parties and upon the circumstances of each particular case. No invariable rule can be laid down. It is generally said, however, that the woman must exercise actual opposition and the utmost resistance of which she is capable, or at least she must make such resistance as she is reasonably called upon to exercise under the circumstances.42 Resistance may be sufficiently proved, however, when it is shown that the act was accomplished by means of threats and fear of bodily injury,43 which overcome the female. "The importance of resistance," it is said, "is simply to show two elements of the crime; carnal knowledge by force by one of the parties and non-consent by the other." And, as already shown, when the woman is an idiot, overcome by fear and threats, under the age of consent or the like, the rule requiring actual physical resistance does not apply.

§ 3098. Res gestae.-Matters constituting part of the res gestae are admissible in cases of rape as well as in other cases. Thus, evidence of the conduct and language of the parties at the time of and characterizing the act is admissible. So, the struggles and outcries of the woman are competent to be shown.16 So, the condition of her person

45

41 Felton v. State, 139 Ind. 531, 39 N. E. 228; Hawkins v. State, 136 Ind. 630, 36 N. E. 419; Anderson v. State, 104 Ind. 467, 4 N. E. 63; People v. Crego, 70 Mich. 319, 38 N. W. 281; State v. Knapp, 45 N. H. 148; Bean v. People, 124 Ill. 576, 16 N. E. 956; Commonwealth v. McDonald, 110 Mass. 405; Ransbottom v. State, 144 Ind. 250, 43 N. E. 218; Brown v. Commonwealth, 82 Va. 653.

42 Huber v. State, 126 Ind. 185, 25 N. E. 904; Anderson v. State, 104 Ind. 467, 4 N. E. 63; Oleson v. State, 11 Neb. 276, 9 N. W. 38, 38 Am. R. 366; People v. Dohring, 59 N. Y. 374, 17 Am. R. 349; People v. Mayes, 66 Cal. 597, 6 Pac. 691, 56 Am. R. 126; see, 36 Am. R. 860, note; Mills v. United States, 164 U. S. 644, 17 Sup. Ct. 210; 80 Am. Dec. 364-367, note.

43 Ransbottom v. State, 144 Ind. 250, 43 N. E. 218; Felton v. State, 139 Ind. 531, 39 N. E. 228; People v. Lenon, 79 Cal. 625, 21 Pac. 967.

"State v. Shields, 45 Conn. 256. 45 Castillo v. State, 31 Tex. Cr. App. 145, 19 S. W. 892, 37 Am. St. 794; 1 McClain's Cr. Law, § 455; 2 Bishop Cr. Proc., § 936; see also, McMath v. State, 55 Ga. 303; People v. Flynn, 96 Mich. 276, 55 N. W. 834; State v. Shettleworth, 18 Minn. 208; People v. Colletta, 65 App. Div. (N. Y.) 570, 72 N. Y. S. 903.

46 Such evidence might, of course, be original evidence. But it has been held error to permit a witness to testify that he heard cries or noises indicating distress, when he could not state who made the noise nor what it was about. Baker v. State, 82 Miss. 84, 33 So. 716. That no outcry was made, although prose

and clothing and the like at the time and place of the alleged rape may be shown. And her spontaneous exclamations and complaints may also be so connected with the principal transaction as to be part of the res gestae. Indeed, some authorities admit details of her complaint as part of the res gestae, although as shown in another section, her complaint is not ordinarily treated as part of the res gestae, but is admitted on another principle, and the details or particulars are excluded in the first instance.

§ 3099. Complaint.-As elsewhere pointed out the use of the woman's complaint in evidence is apparently a relic of the old law of hue and cry. According to the decided weight of authority in this country, however, while the fact that the prosecutrix made complaint is admissible, the particulars of the complaint cannot be shown by her in the first instance before any attempt has been made to impeach. her.50 This is true unless the complaint is so recent, so spontaneous,

cutrix knew persons were near has been held admissible. Sutton V. People, 145 Ill. 279, 34 N. E. 420; State v. Patrick, 107 Mo. 147, 17 S. W. 666; see also, Huber v. State, 126 Ind. 185, 25 N. E. 904.

"And in some cases evidence of such matters at a time after the alleged act is treated as admissible as part of the res gestae. See generally, Polson v. State, 137 Ind. 519, 35 N. E. 907; State v. Baker, 106 Iowa 99, 76 N. W. 509; State v. Hutchinson, 95 Iowa 566, 64 N. W. 610; People v. Baldwin, 117 Cal. 244, 49 Pac. 186; State v. Murphy, 118 Mo. 7, 25 S. W. 95; State v. Sanford, 124 Mo. 484, 27 S. W. 1099; Hornbeck v. State, 35 Ohio St. 277, 35 Am. St. 608; Proper v. State, 85 Wis. 615, 55 N. W. 1035; State v. Sargent, 32 Ore. 110, 49 Pac. 889; State v. Robertson, 38 La. Ann. 618, 58 Am. R. 201; Brown v. State, 72 Miss. 997, 17 So. 298; Rex v. Clarke, 2 Stark. 241, 3 E. C. L. 393; State v. Shettleworth, 18 Minn. 208; Pefferling v. State, 40 Tex. 486.

48 McMurrin v. Rigby, 80 Iowa 322, 45 N. W. 877; State v. Jerome, 82 Iowa 749, 48 N. W. 722; Castillo v. State, 31 Tex. Cr. App. 145, 19 S. W. 892, 37 Am. St. 794; State v. Neel, 21 Utah 151, 60 Pac. 510; State v. Fitzsimon, 18 R. I. 236, 27 Atl. 446; some of these cases, perhaps, go a little too far and are not in line with the weight of authority. See also, Kenney v. State, (Tex. Cr. App.) 79 S. W. 817, 65 L. R. A. 316, and note.

1

49 See, Vol. I, § 566; Bract. f. 147; Hale P. C. 634; 2 Hale P. C. 279, 284; Hannon v. State, 70 Wis. 448, 36 N. W. 1, 3.

50 Bray v. State, 131 Ala. 46, 31 So. 107; Barnett v. State, 83 Ala. 40, 3 So. 612; Williams v. State, 66 Ark. 264, 50 S. W. 517; Hannon v. State, 70 Wis. 448, 451, 36 N. W. 1; Lee v. State, 74 Wis. 45, 41 N. W. 960; State v. Langford, 45 La. Ann. 1177, 1179, 14 So. 181; Lowe v. State, 97 Ga. 792, 25 S. E. 676; Baccio v. People, 41 N. Y. 265, 271; State v. Harness, (Idaho) 76 Pac. 788;

and so connected with the principal fact as to constitute part of the res gestae. But a few authorities hold that the particulars of the complaint are admissible as res gestae declarations even when they would hardly be so considered in any other class of cases.51 And on crossexamination to impeach her the details may be brought out, or, after the credibility of her testimony on the subject has been attacked, she may show the details of her complaint by herself or the witness to whom she made such complaint.52 The theory on which the fact that she made complaint is admitted seems to be that it would be a natural thing to do and that if no evidence were given that she did complain the jury might well infer that she made no complaint and that no such act as that charged was committed by force and without her

consent, her silence being inconsistent with her charge and present testimony.53 So, after she has been impeached, or her credibility attacked, the details of her complaint are admitted on the principle of corroboration rehabilitating her by evidence of similar statements. The fact that some time elapsed before she made complaint generally goes to her credibility and the weight of the testimony rather than to its competency, and the delay may be explained by her, as by showing that it was caused by the threats of the prisoner, lack of opportunity, or the like.55

§ 3100. Complaint-Particulars.-There is some difference of opinion as to what are particulars within the rule excluding evidence of the particulars of the complaint in the first instance. In some cases the name of the assailant or alleged ravisher has not been considered a particular of the complaint and has been permitted to be stated.50 But, as a general rule supported by the weight of authority, it is excluded. So, her statements as to violence used, the injuries to her

person, and the like, have been excluded.58 But it is held that the time and place of the complaint, the person to whom it was made, and the like, may be shown.50

§ 3101. Character and reputation. The character of the prosecutrix for chastity may be said to be in issue or relevant to the issue in prosecution for rape as bearing upon the question of consent,0 where the prosecution is not under a statute for carnally knowing a child under the age of consent.1 There is some conflict among the