Sharpe, J.
Defendant Roger Myers, a single man of. the age of 17 years, was convicted by a trial judge sitting without a jury of the crime of rape, as defined in the penal code, Act No. 328, § 520, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-520, Stat. Ann. §28.788).
The people charge that the crime was committed August 8, 1941. The complaining witness, a single
woman, whose name is omitted from this opinion for obvious reasons, testified that on the evening in question she had gone to the Rouge Park pool for a swim; that she came out of the pool about 9:45 p. m. and went to a point on Plymouth road to wait for a bus to return to Plymouth; that while waiting for a bus, a ear drove by with three young men in it; that the car returned and the young men invited her to go for a ride; and that upon her refusal, she was ordered, at the point of a gun,, to get into the car. She said: “I got in that car because I was frightened. I thought if I didn’t they might either hit me over the head with the gun or shoot me.” She further testified that as they drove, she learned that the young men had been planning a holdup; that they drove out into the country and parked the car on a side -road, where all three of the young men had intercourse with her; and that later the parties returned and let the complaining witness out at the city limits of Plymouth. On the same evening, she reported the matter to the police; and at a later date, she went to Detroit to a “showup” where she identified Roger Myers and Richard Dubey from a number of men.
On October 29, 1941, the trial court found defendant Myers guilty and remanded him to the custody of the sheriff to await the report of the probation department. On November 21, 1941, Myers was placed on probation for a term of five years. On March 23, 1942, the order of probation was revoked and Myers was sentenced for a term of not less than 10 years nor more than 20 years with no recommendation. Subsequently, a motion for a new trial was made and on June 12,1942, was denied.
Defendant Myers appeals and contends that the finding of the court as to his guilt was contrary to the great weight of the evidence.
There is evidence in the record that all three of the young men including Myers had intercourse with the girl. It is admitted that at some period during the trip the sum of $29 was extracted from the girl’s pocketbook and later divided among the three young men. It is also an admitted fact that the guns used were imitation and one of them had been recently purchased from a five-and-ten-cent store.
It is claimed that the prosecutrix did not resist to the utmost. The prosecutrix testified as follows:
“I know what the meaning of the word ‘sexual intercourse’ is. Richard Dubey had sexual intercourse with me at that time. His private parts entered my private parts. I struggled with him. I tried to push him away, but he was, didn’t do any good because he was laying on top of me. Dubey eventually got off of me. Roger Myers come over to the car. Well, when he got in the car I had, I was sitting up there and he says, ‘Don’t be bashful.’ I said well, I didn’t want to have intercourse with him either, and then he pulled the gun out, that was a smaller gun than the one was had before. That is Roger Myers. He says, ‘I don’t want to use this gun,’ but he says, ‘I may have to.’ Well, then I was forced to have intercourse with him. He pushed me down. He had intercourse with me. His private parts entered my private parts.”
In
People
v.
Geddes,
301 Mich. 258, we said: “The degree of resistance required to be shown in rape cases is generally said to be ‘resistance to the utmost.’ ” But, it is well settled that failure to resist is excused if the will of the prosecutrix was overcome by fear of the defendant.
Strang
v.
People,
24 Mich. 1, and
Moran
v.
People,
25 Mich. 356 (12 Am. Rep. 283). In our opinion, there was competent evidence, if believed by the trial judge, to find defendant guilty beyond a reasonable doubt of the
offense named. The conviction of defendant is affirmed.
It is next urged that the revocation of the probation order was invalid as being contrary to 3 Comp. Laws 1929, § 17374 (Stat. Ann. § 28.1134), which provides that, “All probation orders shall be revocable and terminable after summary hearing for any violation by the probationer of any of the conditions of his probation.”
In our discussion of this phase of the case, we shall assume that there is a valid probation order on file in the office of the clerk of the court. The probation order is not set out in the record. Apparently, the court expected defendant to go to work and finish his high school education by attending night school, but did not state that this was a condition on which probation was granted.
• On March 23, 1942, defendant was summarily brought before the trial judge and asked why the court should not set aside the order entered on November 21, 1941, putting him on probation for five years. To this question, the defendant answered that he was not guilty. There is some intimation in the record that the violation defendant was charged with was statutory rape on a 15-year-old girl, but whatever the charge was, the defendant denied it and no evidence was offered to sustain the charge.
Under a prior probation statute, a hearing on the violation of the probation order was not necessary. See
People
v.
Dudley,
173 Mich. 389. The above case was decided under the provisions of Act No. 91, Pub. Acts 1903, as amended by Act No. 124, Pub. Acts 1909.
The above act, as amended, was repealed by Act No. 105, Pub. Acts 1913, section 4 of which, being 1 Comp. Laws 1915, §2032, provided:
“At any time during the period of probation the court may, upon report by a probation officer or other satisfactory proof of the violation by the probationer of any of the conditions of his probation, revoke and terminate the same, and issue a warrant for the arrest of the probationer. * * * Upon the probationer being brought before the court for violation of his probation, the court, in its discretion, may revoke and terminate such probation and ■impose the sentence provided by law.”
People
v.
Hodges,
231 Mich. 656, was decided under the above law. We there said:
“While it is not necessary that a formal hearing be had to revoke the probation
(People
v.
Dudley,
173 Mich. 389), yet we think the better practice was adopted by the trial judge in the instant case of fixing a day of hearing and giving the defendant an opportunity to be heard.”
In 1925, the legislature enacted Act No. 203, Pub. Acts 1925, which amended Act No. 105, § 4, Pub. Acts 1913, and provided for a summary hearing.
The present law, 3 Comp. Laws 1929, § 17374 (Stat. Ann. § 28.1134), provides:
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Sharpe, J.
Defendant Roger Myers, a single man of. the age of 17 years, was convicted by a trial judge sitting without a jury of the crime of rape, as defined in the penal code, Act No. 328, § 520, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-520, Stat. Ann. §28.788).
The people charge that the crime was committed August 8, 1941. The complaining witness, a single
woman, whose name is omitted from this opinion for obvious reasons, testified that on the evening in question she had gone to the Rouge Park pool for a swim; that she came out of the pool about 9:45 p. m. and went to a point on Plymouth road to wait for a bus to return to Plymouth; that while waiting for a bus, a ear drove by with three young men in it; that the car returned and the young men invited her to go for a ride; and that upon her refusal, she was ordered, at the point of a gun,, to get into the car. She said: “I got in that car because I was frightened. I thought if I didn’t they might either hit me over the head with the gun or shoot me.” She further testified that as they drove, she learned that the young men had been planning a holdup; that they drove out into the country and parked the car on a side -road, where all three of the young men had intercourse with her; and that later the parties returned and let the complaining witness out at the city limits of Plymouth. On the same evening, she reported the matter to the police; and at a later date, she went to Detroit to a “showup” where she identified Roger Myers and Richard Dubey from a number of men.
On October 29, 1941, the trial court found defendant Myers guilty and remanded him to the custody of the sheriff to await the report of the probation department. On November 21, 1941, Myers was placed on probation for a term of five years. On March 23, 1942, the order of probation was revoked and Myers was sentenced for a term of not less than 10 years nor more than 20 years with no recommendation. Subsequently, a motion for a new trial was made and on June 12,1942, was denied.
Defendant Myers appeals and contends that the finding of the court as to his guilt was contrary to the great weight of the evidence.
There is evidence in the record that all three of the young men including Myers had intercourse with the girl. It is admitted that at some period during the trip the sum of $29 was extracted from the girl’s pocketbook and later divided among the three young men. It is also an admitted fact that the guns used were imitation and one of them had been recently purchased from a five-and-ten-cent store.
It is claimed that the prosecutrix did not resist to the utmost. The prosecutrix testified as follows:
“I know what the meaning of the word ‘sexual intercourse’ is. Richard Dubey had sexual intercourse with me at that time. His private parts entered my private parts. I struggled with him. I tried to push him away, but he was, didn’t do any good because he was laying on top of me. Dubey eventually got off of me. Roger Myers come over to the car. Well, when he got in the car I had, I was sitting up there and he says, ‘Don’t be bashful.’ I said well, I didn’t want to have intercourse with him either, and then he pulled the gun out, that was a smaller gun than the one was had before. That is Roger Myers. He says, ‘I don’t want to use this gun,’ but he says, ‘I may have to.’ Well, then I was forced to have intercourse with him. He pushed me down. He had intercourse with me. His private parts entered my private parts.”
In
People
v.
Geddes,
301 Mich. 258, we said: “The degree of resistance required to be shown in rape cases is generally said to be ‘resistance to the utmost.’ ” But, it is well settled that failure to resist is excused if the will of the prosecutrix was overcome by fear of the defendant.
Strang
v.
People,
24 Mich. 1, and
Moran
v.
People,
25 Mich. 356 (12 Am. Rep. 283). In our opinion, there was competent evidence, if believed by the trial judge, to find defendant guilty beyond a reasonable doubt of the
offense named. The conviction of defendant is affirmed.
It is next urged that the revocation of the probation order was invalid as being contrary to 3 Comp. Laws 1929, § 17374 (Stat. Ann. § 28.1134), which provides that, “All probation orders shall be revocable and terminable after summary hearing for any violation by the probationer of any of the conditions of his probation.”
In our discussion of this phase of the case, we shall assume that there is a valid probation order on file in the office of the clerk of the court. The probation order is not set out in the record. Apparently, the court expected defendant to go to work and finish his high school education by attending night school, but did not state that this was a condition on which probation was granted.
• On March 23, 1942, defendant was summarily brought before the trial judge and asked why the court should not set aside the order entered on November 21, 1941, putting him on probation for five years. To this question, the defendant answered that he was not guilty. There is some intimation in the record that the violation defendant was charged with was statutory rape on a 15-year-old girl, but whatever the charge was, the defendant denied it and no evidence was offered to sustain the charge.
Under a prior probation statute, a hearing on the violation of the probation order was not necessary. See
People
v.
Dudley,
173 Mich. 389. The above case was decided under the provisions of Act No. 91, Pub. Acts 1903, as amended by Act No. 124, Pub. Acts 1909.
The above act, as amended, was repealed by Act No. 105, Pub. Acts 1913, section 4 of which, being 1 Comp. Laws 1915, §2032, provided:
“At any time during the period of probation the court may, upon report by a probation officer or other satisfactory proof of the violation by the probationer of any of the conditions of his probation, revoke and terminate the same, and issue a warrant for the arrest of the probationer. * * * Upon the probationer being brought before the court for violation of his probation, the court, in its discretion, may revoke and terminate such probation and ■impose the sentence provided by law.”
People
v.
Hodges,
231 Mich. 656, was decided under the above law. We there said:
“While it is not necessary that a formal hearing be had to revoke the probation
(People
v.
Dudley,
173 Mich. 389), yet we think the better practice was adopted by the trial judge in the instant case of fixing a day of hearing and giving the defendant an opportunity to be heard.”
In 1925, the legislature enacted Act No. 203, Pub. Acts 1925, which amended Act No. 105, § 4, Pub. Acts 1913, and provided for a summary hearing.
The present law, 3 Comp. Laws 1929, § 17374 (Stat. Ann. § 28.1134), provides:
“All probation orders shall be revocable and terminable after summary hearing for any violation by the probationer of any of the conditions of his probation; and the court may in its probation orders or by general' rule, or both, provide for the apprehension, detention and confinement of any probationer accused of violating - the terms of his probation, for the presentation of charges of such violation and the hearing therein; * * * but in case the court shall fail to so provide, or in any case by consent of the court, proceedings for such termination and revocation may be instituted by petition and order to show cause, and the court on
presentation of such, petition and hearing on such order may make all such orders respecting the apprehension, detention, confinement, and disposition of the probationer and all other matters in relation thereto, as in its judgment the welfare and protection of the public and probationer may require. ’ ’
Under the present law a hearing on charges of probation violation, which may be “summary,” is necessary before a probation order can be revoked. The statute speaks in terms of “presentation of charges” of probation violation and “hearing therein.” In our opinion the putting of the question by the trial judge and the denial of the same by the probationer did not constitute a “hearing” for violation of the conditions of the probation. No proof of the violation charges was presented. This we think was ■ necessary before the court could determine whether or not there had been violation of the conditions of the probation.
The order revoking probation is set aside, the sentence vacated and the defendant remanded to the custody of the court, but without prejudice on the part of the trial court to conduct a hearing on violation of the terms of the probation order.
Chandler, Starr,, Wiest, and Bushnell, JJ., concurred with Sharpe, J.