Minee, J.:
The defendant was convicted of the crime of rape. The errors upon which the defendant relies for a reversal of the judgment are that the evidence was wholly insufficient to support the verdict of conviction, and that the court erred in not instructing the jury to acquit the defendant.
It appears from the testimony that the defendant' was married to a sister of the prosecutrix. . The parties were well acquainted with each other, and the prosecutrix lived in defendant’s family prior to her marriage. The prosecuting witness, among other things, testified, in substance: That defendant came to her house on May 27, [479]*4791897, about sundown. That be ate supper with ber bus-band, and then went to the corral. That, he soon called, and asked where the clevis pin was. She says: 1 went out where he was. My attention was called to the fact that the clevis pin was lost. I stooped down to pick up the pin, and he stooped down, and put his aim around my shoulder, and says, ‘Let’s have some.’ I said, ‘No, sir; I am not a'woman of that kind.’ Then he had me with my back against the fence, and he held me there with his knees between mine, and he raised my clothes with his other hand, and got what he wanted. My clothes were soiled. After this I went to the house. Before I went to the house defendant said if I told on him he would swear against my word, and make me not a true woman, and that my husband would leave me. Defendant followed me to the house and sat on the steps after I had entered it. My husband was in the house when I returned. My husband told the defendant that he had better come in and go to bed; that the bed was made down. The defendant said, ‘No; he guessed he’d better go home.’ I told him that he had better go home, or somewhere else, ‘the dirty dog.’ ” It appears the defendant accepted the husband’s invitation, and stayed at his house that night, and went awrny in the morning. It appears also that prosecutrix’s husband had been sick during the summer, and that she had taken care of him night and day for two months previous, and was worn out and weak, and that she had been sick all the summer before the act. She also states that he forced the side of her body against tjie poles of the fence, and that his right arm was around her; that the fence left a greenish color on the back of her dress, and her dress sleeve was torn, as appeared in court; that she stated the fact of her ravishment to her friends afterwards, in presence of defendant, and [480]*480at his request, and he did not deny it, but .admitted it; that defendant said he would do anything in his power to have it settled, but did not want to go to the bishop. He refused to go before the bishop, and said he would be a fool to go before him. She says: “While the defendant was committing this offense I done all in my power that I could do. He held one arm, and I had only one arm from my elbow down. I couldn’t move. I was held fast there. I used my one arm all I could to push him away. I commenced to cry, and did all I could to get away, and bit him. I could not do much when I was held up.” That both parties were standing up, the defendant being in front of her holding her fast. That defendant came to her house often as a friend, and chopped wood and helped them, as her husband was sick. She also states “that at the time of the act my husband was in the house, 150 yards away, and a family lived across the street. I did not call for assistance, because my husband was sick, and the least little thing excited him, and I thought it might put him back in bed again, and I was so pleased to see him getting better.” That she did all she could with the one hand that was loose, and that she was trying all the time to get away from him. That she told Bishop Harris nothing had happened, except that defendant had proposed and she had refused. That the reason she so stated to the bishop was that defendant’s wife begged her not to tell, because it would destroy the two families —“my own sister’s husband and my brother-in-law.” That she asked the prosecuting attorney to withdraw the suit. That defendant said if she told on him, he would swear it on her, and make her out a liar, and that her husband would leave her. That she told her husband about the ravishment about 10.days after it occurred. That her husband wanted it made public and acknowledged. That [481]*481she went to the defendant’s house once'with her husband before the complaint was made. The prosecutrix weighed 120 pounds, and was five feet and a half high. Defendant weighed 160 pounds, and was six feet high. The husband of the prosecutrix testified, in substance, among other things, that on the evening in question he had been sick for some time, an'd that his wife had sat up and waited on him; that when she came in from finding the clevis pin she looked as if she,felt bad; that defendant sat on the steps, and he asked him to stay over night: that defendant replied that he thought he would go home; that witness’ wife called defendant a “dirty dog,” or something like that; that the defendant stayed all night, and went away early in the morning before breakfast; that he was suspicious of something when his wife called defendant a “dirty dog”; that the defendant had been very friendly, and had assisted him during his sickness that after this he had suspicious that something was wrong between his wife and the defendant; that he asked his wife what was wrong between them, and his wife stated the transaction as sworn to, and seemed to feel very badly about it; that, after his wife told him of the rape, “the defendant came to him, and asked him, if this thing got out, if I would swear it was something I had sprung on him, — something I had made up to tell against him.’ Other testimony was given, and the defendant introduced evidence tending to contradict the prosecutrix.
The res gestre in rape cases, according to most of the authorities, would include the fact that a complaint was made by the injured party. In all such cases it is desirable to know how soon, and in what way, the assaulted party complained. The fact of an early complaint is [482]*482material, as bearing upon tbe credibility of her testimony, and delay in making complaint, unless excused or accounted for, as by showing she was under the fear or control of her assailant, will bear upon her credibility. If the prosecutrix be of good fame; if she presently discovered the offense, and made search for the offender; if she made outcry, and showed circumstances and signs of injury; if the offender fled for it, — these and the like are considered circumstances which give greater probability to the truth of her testimony. But, on the other hand, if she concealed the injury for any considerable length of time after she had opportunity to complain; if she be of evil fame, and stand uncorroborated by others; if she give false and contradictory statements as to the occurrence; if the place where the act was alleged to have been committed was where it was possible she might have been.heard, and she made no outcry; if she did not show signs of injury, but remained on friendly terms with the assailant after the assault, — these and the like circumstances carry a strong presumption that her testimony is false or feigned. 1 Hale, P. C. 633; 3 Greenl. Ev. § 121; Strang v. People, 24 Mich. 1; People v. Brown, 53 Mich. 531; State v. McCune, 16 Utah 170; Maillet v. People, 42 Mich. 262.
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Minee, J.:
The defendant was convicted of the crime of rape. The errors upon which the defendant relies for a reversal of the judgment are that the evidence was wholly insufficient to support the verdict of conviction, and that the court erred in not instructing the jury to acquit the defendant.
It appears from the testimony that the defendant' was married to a sister of the prosecutrix. . The parties were well acquainted with each other, and the prosecutrix lived in defendant’s family prior to her marriage. The prosecuting witness, among other things, testified, in substance: That defendant came to her house on May 27, [479]*4791897, about sundown. That be ate supper with ber bus-band, and then went to the corral. That, he soon called, and asked where the clevis pin was. She says: 1 went out where he was. My attention was called to the fact that the clevis pin was lost. I stooped down to pick up the pin, and he stooped down, and put his aim around my shoulder, and says, ‘Let’s have some.’ I said, ‘No, sir; I am not a'woman of that kind.’ Then he had me with my back against the fence, and he held me there with his knees between mine, and he raised my clothes with his other hand, and got what he wanted. My clothes were soiled. After this I went to the house. Before I went to the house defendant said if I told on him he would swear against my word, and make me not a true woman, and that my husband would leave me. Defendant followed me to the house and sat on the steps after I had entered it. My husband was in the house when I returned. My husband told the defendant that he had better come in and go to bed; that the bed was made down. The defendant said, ‘No; he guessed he’d better go home.’ I told him that he had better go home, or somewhere else, ‘the dirty dog.’ ” It appears the defendant accepted the husband’s invitation, and stayed at his house that night, and went awrny in the morning. It appears also that prosecutrix’s husband had been sick during the summer, and that she had taken care of him night and day for two months previous, and was worn out and weak, and that she had been sick all the summer before the act. She also states that he forced the side of her body against tjie poles of the fence, and that his right arm was around her; that the fence left a greenish color on the back of her dress, and her dress sleeve was torn, as appeared in court; that she stated the fact of her ravishment to her friends afterwards, in presence of defendant, and [480]*480at his request, and he did not deny it, but .admitted it; that defendant said he would do anything in his power to have it settled, but did not want to go to the bishop. He refused to go before the bishop, and said he would be a fool to go before him. She says: “While the defendant was committing this offense I done all in my power that I could do. He held one arm, and I had only one arm from my elbow down. I couldn’t move. I was held fast there. I used my one arm all I could to push him away. I commenced to cry, and did all I could to get away, and bit him. I could not do much when I was held up.” That both parties were standing up, the defendant being in front of her holding her fast. That defendant came to her house often as a friend, and chopped wood and helped them, as her husband was sick. She also states “that at the time of the act my husband was in the house, 150 yards away, and a family lived across the street. I did not call for assistance, because my husband was sick, and the least little thing excited him, and I thought it might put him back in bed again, and I was so pleased to see him getting better.” That she did all she could with the one hand that was loose, and that she was trying all the time to get away from him. That she told Bishop Harris nothing had happened, except that defendant had proposed and she had refused. That the reason she so stated to the bishop was that defendant’s wife begged her not to tell, because it would destroy the two families —“my own sister’s husband and my brother-in-law.” That she asked the prosecuting attorney to withdraw the suit. That defendant said if she told on him, he would swear it on her, and make her out a liar, and that her husband would leave her. That she told her husband about the ravishment about 10.days after it occurred. That her husband wanted it made public and acknowledged. That [481]*481she went to the defendant’s house once'with her husband before the complaint was made. The prosecutrix weighed 120 pounds, and was five feet and a half high. Defendant weighed 160 pounds, and was six feet high. The husband of the prosecutrix testified, in substance, among other things, that on the evening in question he had been sick for some time, an'd that his wife had sat up and waited on him; that when she came in from finding the clevis pin she looked as if she,felt bad; that defendant sat on the steps, and he asked him to stay over night: that defendant replied that he thought he would go home; that witness’ wife called defendant a “dirty dog,” or something like that; that the defendant stayed all night, and went away early in the morning before breakfast; that he was suspicious of something when his wife called defendant a “dirty dog”; that the defendant had been very friendly, and had assisted him during his sickness that after this he had suspicious that something was wrong between his wife and the defendant; that he asked his wife what was wrong between them, and his wife stated the transaction as sworn to, and seemed to feel very badly about it; that, after his wife told him of the rape, “the defendant came to him, and asked him, if this thing got out, if I would swear it was something I had sprung on him, — something I had made up to tell against him.’ Other testimony was given, and the defendant introduced evidence tending to contradict the prosecutrix.
The res gestre in rape cases, according to most of the authorities, would include the fact that a complaint was made by the injured party. In all such cases it is desirable to know how soon, and in what way, the assaulted party complained. The fact of an early complaint is [482]*482material, as bearing upon tbe credibility of her testimony, and delay in making complaint, unless excused or accounted for, as by showing she was under the fear or control of her assailant, will bear upon her credibility. If the prosecutrix be of good fame; if she presently discovered the offense, and made search for the offender; if she made outcry, and showed circumstances and signs of injury; if the offender fled for it, — these and the like are considered circumstances which give greater probability to the truth of her testimony. But, on the other hand, if she concealed the injury for any considerable length of time after she had opportunity to complain; if she be of evil fame, and stand uncorroborated by others; if she give false and contradictory statements as to the occurrence; if the place where the act was alleged to have been committed was where it was possible she might have been.heard, and she made no outcry; if she did not show signs of injury, but remained on friendly terms with the assailant after the assault, — these and the like circumstances carry a strong presumption that her testimony is false or feigned. 1 Hale, P. C. 633; 3 Greenl. Ev. § 121; Strang v. People, 24 Mich. 1; People v. Brown, 53 Mich. 531; State v. McCune, 16 Utah 170; Maillet v. People, 42 Mich. 262.
In this case the prosecution introduced the above and other evidence tending to connect the defendant with the commission of the crime, and the defendant introduced evidence tending to exculpate him from the charge. The jury were the judges of the facts, the credibility of the witnesses, and the weight of the evidence. They were evidently satisfied with the truth of the testimony of the prosecutrix, and with the reasons given by her for not making a complaint at an earlier date, and in not making an outcry on the occasion in question. If the jury be[483]*483lieved the testimony of the prosecutrix on the subject of the act charged, it was sufficient upon which to convict the defendant. All the elements of the crime charged were covered by her testimony, although it must be conceded that a portion of it was weak and unsatisfactory. In the case of State v. McCune, 16 Utah 170, this court said: “All the surrounding circumstances were shown to the jury, and they found the issues against the defendant. If the jury believed the testimony offered on the part of the prosecutrix, it was clearly sufficient to justify the verdict found. In such cases, and under such circumstances, it is not within the legal power of this court under the constitution of this state, to substitute its judgment for that of the jury, even if so inclined. This question has been passed upon by this court so frequently that it is unnecessary'to give further reasons or cite authority in support of the position taken.” The same principle is applicable to the case at bar. The case seems to have been submitted to the jury upon proper instructions.
A motion for a new trial was made,.based upon newly discovered evidence. It appears from affidavits used that defendant was surprised at the testimony of the prose-cutrix, and that much of the material testimony given by her upon the trial was untrue. We are not satisfied that if this testimony had been introduced a different conclusion might not have been reached-by the jury. We are therefore inclined to hold that the court erred in refusing to grant a new trial upon the basis of the evidence and affidavits submitted upon the motion. The judgment of the court below is reversed, and a new trial granted.
ZANE, C. J., and Bartch, J., concur.