Sherwood, C. J.
The crime charged was rape, and on trial had the defendant was convicted. The punishment assessed was fifteen years in the penitentiary; but the trial court, believing the punishment greater and more severe than was warranted by the evidence, lopped off five years, and sentenced the defendant but for the remainder of the assessed term.
As, in the progress of this opinion, there will be a sufficient statement of the salient facts in this cause, it is unnecessary to set forth those facts now.
I. If universal precedents are to be followed, and the plainest principles of evidence are not to be ignored, the conversations which are said to have occurred between the prosecutrix and Millie, Tom and Jim Patrick were wholly inadmissible for any purpose whatsoever, unconnected as these conversations were [153]*153with the defendant. State v. Rothschild, 68 Mo. 52. These conversations seem to have been admitted for the special purpose of bolstering up the prosecutrix, and showing in her defense why she happened to be at a certain spot when Charlie Patrick, the defendant, having been released at Monticello because of her failure to appear and prosecute him, arrived at that opportune moment and outraged her. Upon what principle of either ethics or law, an absent and imprisoned defendant is to be sacrificed for the benefit of a prosecuting witness it is difficult to conceive.
But look at the excuse that witness gives for her ambulatory movements and her reasons for escape from her husband; she says defendant came to her dwelling and made improper solicitations, but was repulsed. After a few days he comes again and she “knowed he was going to say something to her,” announced her intention of going to her aunt Martha Botts’ house, and left him, but he overtook her and before she knew it grabbed, tripped her and threw her down, when she managed by a ruse about some one coming to escape from him and by running reached his mother’s and thus frustrated his purpose. Of this assault, though so nearly successful, and of the previous solicitations, she made complaint to no one. Some days after this, how long it does not appear, the defendant, she says, again came to her house, and, announcing his purpose, shut the doors, grabbed and threw her on the bed where they “had two or three wrestles,” when he seeing his brother coming desisted, etc.
Of this assault made in the daytime, on Monday, she told her husband that night after its occurrence, and he went down to Monticello the next day, Tuesday, to procure the arrest of defendant, which was accomplished on Friday. When the husband returned and made arrangements to get a buggy to take the prosecutrix down to Monticello to prosecute defendant, she, as it is-[154]*154said at the instance of the Patrick brothers and sister in-law of the defendant, gave her husband the slip, on the ground, as she states, that they told her her husband would kill her, or would get a divorce from her if she went to Monticello and appeared against the defendant, and that her husband “had done given the girl the .engagement ring.” In other words the prosecuting witness desires to be believed when she tells that she believed that her husband was going to kill her or have her punished in some way or get a divorce from her, merely for complying with his wishes and her wishes to prosecute her attempted ramsher! Aside from all considerations of the utter incompetency of such testimony, the flimsy nature of the excuse given is altogether too frivolous to merit serious attention.
And where the evidence is thus incompetent a general objection to its admission is sufficient. State v. Meyers, 99 Mo., loc. cit. 120, et seq. The admission of this evidence alone constitutes reversible error, and that error was not cured by an instruction limiting the evidence thus erroneously admitted for the purpose of supporting the prosecutrix as to her purity of motive in being at the locality of the alleged outrage. The tendency and the only tendency of that testimony was to show a conspiracy between the Patrick brothers and the sister-in-la\y to spirit the prosecutrix away, but on this score it was wholly inadmissible, the defendant being no party to such conspiracy. This being true, upon what principle is it that snch unauthorized conspiracy can be made the medium for giving credit to a witness who testifies to, and relies on, such conspiracy ? The theory of the introduction of such evidence is just this : Introduce your evidence of a conspiracy between strangers to the record, and then if you cannot make it work because the defendant is not in it, still you may make it work to uphold the “honesty and purity” of the witness who testifies to its éxistence. In a word, worthless as a conspiracy, but most excellent as corroboration! [155]*155Besides, it was not competent to corroborate the witness before she had been attacked or impeached, and this evidence so-called was admitted prior to that time. 1 Greenleaf, Ev. [14 Ed.] sec. 469; 1 Whart. Ev., sec. 569; State v. Thomas, 78 Mo. 327; State v. Grant, 79 Mo. 113.
And a prosecution for rape makes no exception to this rule, nor does the prosecutrix enjoy any privileges in this behalf not accorded to other witnesses. People v. Hulse, 3 Hill, 309; Young v. Johnson, 25 N. E. Rep. 363, and cases cited. And even when admitted such corroborative evidence must proceed from extraneous sources, and not come from the mouth of the witness when on the stand who seeks to obtain from her own lips the desired and desirable corroboration.
II. There was no error in admitting evidence of prior assaults of the" defendant upon the prosecutrix ; the crime charged consisted of two elements, the felonious intent and the force to consummate that in tent; the former element could well be proven by prior assaults or attempts. The authorities supporting this view are abundant and will be found collated in People v. O'Sullivan, 104 N. Y. 481.
III. The instructions given or refused will now be discussed, and first given those on behalf of the state. They are as follows : “1. The jury are instructed that, if they shall believe from the evidence that the defendant at the county of Lewis, in the state of Missouri, in July, 1819, did ravish and carnally know the prosecutrix, Annie K. Botts, forcibly and against her will, then in such case they will find him guilty, and assess his punishment at imprisonment in the penitentiary for a term of not less than five years, or at death.
“2'. The jury are instructed, if they believe from the evidence beyond a reasonable doubt that the defendant had sexual intercourse with the said Annie K. Botts, forcibly and against her will, then the defendant may be guilty of rape, although the evidence may show that said Annie K. Botts may have not made [156]*156immediate outcry after the commission of the alleged offense, or may have heretofore been on friendly terms with defendant, and on unfriendly terms with her husband.
“3. While the jury should acquit the defendant should they entertain a reasonable doubt of his guilt, still such doubt to justify an acquittal must be reasonable and arise from the insufficiency of the evidence in the cause and not a mere possibility of innocence.
“4. In passing on the question of defendant’s guilt it is competent to consider whether or not he fled from the state for the purpose of avoiding arrest and to escape prosecutioñ when first charged with the offense.
“5. The jury are the sole judges of the weight of the evidence and the credibility of the witnesses ; and, in determining the weight to be given to the testimony of the different witnesses in this case, the jury are authorized to consider the relationship of the witnesses to the party on trial if such relationship has been proved; their interest, if any, in the event of the trial; their temper, feeling or bias if any has been shown; their demeanor while testifying; the reasonableness of their story, and all the circumstances tending to corroborate or contradict such witness; and to give such credit to the testimony of such witness as under the circumstances such witness seems to be entitled to.
“6. The jury are instructed that they should consider the entire evidence in the case, introduced by the state and the defendant; but the jury are at liberty to disregard the evidence of all such witnesses, if any there be, as have been successfully impeached either by direct contradiction or by proof of having made different statements at other times, or by proof of bad mofal character, or by proof that the general reputation of such witnesses for truth and veracity in the neighborhood in which such witness lives is bad, except in so far as such witnesses have been corroborated by other credible evidence or facts and circumstances proved on the trial.
[157]*157“7. They are instructed that under the statutes of this state the defendant is a competent witness in his own behalf, but the fact that he'is a -witness testifying in his own behalf may be considered by the jury in determining the credibility of his testimony.
“8. If the jury find the defendant guilty the verdict may be in the following form: ‘We the jury find defendant guilty in manner and form as charged in the indictment and assess his punishment at * * * and signed by your foreman.’ If the .jury find for defendant the verdict may be ■ in the following form: ‘We the jury find the defendant not guilty.’ ”
As no exceptions were saved to the instructions, numbered 1, 2 and 3, given at the instance of the state, the propriety of giving them cannot be directly considered though some reference will hereafter be made to instruction, numbered 2, leaving instructions 4, 5 and 6 for direct comment, so far as necessary. The court of its own motion give the following instructions :
“11. Should the evidence show to the exclusion of every reasonable doubt that Millie Patrick, Thomas Patrick, or “Dug” Patrick, or Janies Patrick may have wrongfully made false representations to Annie K. Botts, or may have conspired together to carry said Annie K. Botts away from her husband and detain her in custody, 'still such fact cannot be considered as evidence of rape against the defendant. Defendant is not on trial for the acts of such parties.
“ 12. Defendant is upon trial for rape. It would not be competent for the jury to find the defendant guilty of assault with intent to rape, of fornication, kidnapping or any other offense than the rape charged.
“ 13. The jury are instructed that although some of the witnesses who have testified may have been shown to have made contradicting statements in reference to matters about which they have testified and that others may have been shown to have had bad reputations for truth and veracity, honesty and integrity, or [158]*158morality in the neighborhood in which they live, still such facts can only be considered for the purpose of determining the degree of credit to be given to the testimony of such witness.
“14. The evidence introduced on behalf of the state, relating to the acts of the defendant’s brothers and Millie Patrick in reference tp the prosecutrix before the time when she swears she was ravished, was admitted by the court, and can only be considered by the jury for the purpose of determining whether or not the motive and conduct of the prosecutrix were consistent with honesty and purity in being at the place where she swears she was raped, if the jury should believe from the evidence that she met defendant at such place.
“15. The jury are instructed that under the law defendant Is presumed to' be innocent until his guilt shall be proven by the state, and that if after considering and comparing the. whole of the evidence in the case the jury entertain a reasonable doubt of the defendant’ s guilt they will give to him the benefit of such doubt and find him not guilty.”
There was no exception saved to the giving of any of‘these instructions but number 13.
The court at the instance of the defendant gave the following instructions: “1. That the indictment found by the grand jury against defendant in this case cannot be considered by the jury in determining the question of the guilt of defendant.
“2. That before the defendant can be found guilty of rape upon the prosecutrix, Annie K. Botts, the jury must believe from the evidence in the cause that defendant assaulted and forcibly had sexual intercourse with her or actually and forcibly penetrated her body with his private parts against her will and consent; and that said Annie K. Botts manifested the utmost reluctance and used the utmost resistance against such sexual intercourse or penetration.”
[159]*159, “9. The evidence which has been introduced as to the general reputation of defendant in the neighborhood in which he lived for morality can only be considered for the purpose of determining the amount of credit to be given him as a witness. It can be considered for no other purpose.
“10. The court instructs the jury that, in determining the degree of credit to be given to the evidence of the prosecutrix in regard to the alleged rape, it is competent to consider the conduct of the prosecuting witness at and about the time thereof, the length of time that elapsed after the alleged rape had been committed before she made it known. The fact that she was in defendant’s company after the alleged offense without complaining against him; and her conduct toward her husband after the alleged offense was committed and the other facts and circumstances surrounding such witness as testified to in the case.”
At the same time the court refused to give the defendant thefollowinginstructions: “3. Thatincaseof rape it devolves upon the state to show before a conviction can be had that the party ravished made complaint thereof immediately after being ravished or as soon thereafter as such party has opportunity so to do. Now the court instructs the jury that no such complaint by the prosecutrix, Annie K. Botts, has been proven in this case.
“4. That, under the laws of this state, it is made the duty of the party ravished to make complaint of such ravishment immediately or as soon after such alleged ravishment as an opportunity can be had to do so. The court instructs the jury that the state has failed to make proof of any such complaint by the prosecutrix, Annie K. Botts, in this case. Now, if the jury shall believe from the evidence that said Annie had opportunity to make such complaint and failed to do so, then such failure to do so is inconsistent with [160]*160the defendant’s guilt and renders the charge of rape upon her by defendant improbable.
“5. The jury are instructed that the charge of rape made by the prosecutrix, Annie K. Botts, against defendant remains uncorroborated by any evidence in the cause; now if the jury shall believe from the evidence in the cause that after the alleged rape upon said Annie she continued friendly intercourse with defendant then the law presumes such friendly intercourse inconsistent with defendant’s guilt and renders her charge of rape against defendant improbable.
“6. The jury are instructed that the charge of rape made by Annie K. Botts against defendant remains uncorroborated by any evidence in the cause; now if the jury shall believe from the evidence in the cause that said Annie concealed the alleged rape until on Friday after the alleged commission of such rape upon her, then the law presumes such concealment inconsistent with defendant’s guilt.”
“8. That, although the"jury may believe from the evidence in the cause that some of defendant’s witnesses made statements different from the statements testified to by them upon this trial, yet the jury cannot consider such statements as evidence in the cause against defendant; such statements if the jury shall believe they were made can only be used to affect the credibility of the testimony of the witnesses making them; and, if the jury shall believe that such witnesses were honestly mistaken in making them, then such mistake cannot be used to affect the credibility of such witnesses; and, if the jury shall believe the statements made by such witnesses here in court are true, then it is the duty of the jury to so regard them, regardless of such other statement.”
Exceptions were saved to the refusal to give the instructions just copied.
Looking at the instructions given at the instance of the state "no necessity exists for any examination into [161]*161the propriety of giving the fourth or fifth ; their correctness may be conceded. So much, however, cannot be said for the sixth instruction, and for these reasons: A witness may be impeached in several ways, e. g.: First, by disproving the facts testified by him; second, by evidence of general reputation showing his character for veracity to be bad ; third, by evidence of contradictory statements made out of court; and, fourth, in this and some other states by showing that the general reputation of the witness as to morality is bad. State v. Grant, supra.
This instruction is objectionable in more features than one. Without guide post or mile post, boundary, limitation or condition,' it leaves to th§ jury to say when and whether a witness has been “successfully impeached.” It is erroneous in another feature, in this : Notwithstanding a witness may have been “successfully impeached,” by anyone of the various means the law recognizes as sufficient, still the witness must be believed provided the witness be corroborated. Now it certainly can make no difference in point of principle in what way the impeachment of the witness be accomplished. In Paulette v. Brown, 40 Mo. 52, an instruction under discussion was: “If the jury find that Thomas Tallis wilfully and knowingly swore falsely to any material matter in this case, the jury are authorized to discredit the whole of the testimony of said Tallis.” And of this instruction, after a review of the earlier cases in this court, it was held that the instruction was proper.
In another case prior to the one just cited, Rioii.aedson, J., speaking for himself held, concerning a similar instruction, that the jury in such case should be instructed that it was their duty to disregard such testimony. State v. Dwire, 25 Mo. 553.
In Brown v. Railroad, 66 Mo. 588, the sixth instruction was : “If the jury believe from the evidence that any witness has wilfully sworn falsely in regard to any [162]*162material fact, they may entirely disregard the testimony of such witness, unless such testimony as to some part is supported by other witnesses, or by corroborating circumstances.” And discussing this instruction this court speaking through Henry, J., said: * * * “Is the jury not at liberty to disregard the testimony of one who has committed perjury in their presence, as to some fact testified to by him, because as to that or some other fact testified to by him he is corroborated ? If the corroborative evidence establish the fact, they may find the fact on the corroborative evidence, but if the corroborative evidence is insufficient of itself to prove the fact, but in connection with the evidence of the false witness does prove it, is the jury bound to believe the evidence of the witness, and, because corroborated, find the fact as he testifies? This is not the law; the jury may or may not believe him ; that is a matter for their determination, and we hold that it is true, as a legal proposition, that, if a witness has wilfully sworn falsely as to a material fact, the jury are at liberty to disregard his entire testimony, notwithstanding he may have been corroborated as to that or any other fact to which he testified. State v. Mix, 15 Mo. 153; State v. Dwire, 25 Mo. 553. The case of State v. Cushing, 29 Mo. 215, is not in conflict with this doctrine. Blanchard v. Pratt, 37 Ill. 243, is to the contrary, but was cited by this court in Paulette v. Brown, 40 Mo. 60, and expressly disapproved. The authorities in other states cited by respondent’s attorneys, to the effect that although a witness has sworn falsely, yet if corroborated in any manner the jury may give him such credit as they think he deserves, we find no fault with; but the instruction complained of here told the jury, substantially, to give him credit if he was corroborated.” For the reasons given, and under the authorities cited, the giving of the instruction in question, must be held reversible error.
[163]*163IV. Touching the crime under discussion, Blackstone says: “The party ravished may give evidence upon oath-, and is in law a competent witness; but the-credibility of her testimony, and how far forth she is to-be believed, must be left to the jury upon the circumstances of fact that concur in that testimony. For instance: If the witness be of good fame; if she presently discovered the offense, and made search for the offender; if the party accused fled for it; these and the like are concurring circumstances which give greater probability to her evidence. But on the other side, if she be of evil-fame, and stand unsupported by others; if she concealed the injury for any considerable time after she had opportunity to complain; if the place-where the fact was alleged to be committed was where-it was possible she might have been heard, and she made no outcry; these and the like cirmimstances carry a strong but not conclusive presumption that her testimony is false or feigned.” 4 Black. Com. 213.
These remarks are for the most part but • a condensed statement from what had already been said by an earlier author. 1 Hale, P. C. 634, 635.
Wharton says : “ In prosecutions for rape, where-the party injured is a witness, it is material to show that she made complaint while it was yet recent.” Crim. Ev. [ 9 Ed.] sec. 273.
The fact of the injured female making complaint if madejpresentí facto, and the state in which she was as-to her clothing and as to her person, at the time of' making complaint, are • material circumstances and original evidence. Rex v. Clarke, 2 Stark. 241; 3 Chit. Crim. Law, 813.
Some of the courts treat the complaint as part of the res gestee/ others look at it in a different light, but all concede that the reason the complaint is admissible at all is because such complaint is the spontaneous and instinctive utterance of the mental and bodily anguish of an outraged woman on whom has just been inflicted [164]*164the greatest, and foulest of human wrongs. Such complaints stand upon the same basis of reception as do other expressions of mental and bodily feelings. Whether of affection or pleasure, pain, alarm or anguish, they are original evidence because they are the natural language of the emotions of the human heart, its suffering and passions. Whart. Crim. Ev. [9 Ed.] secs. 256, 262, 264, 270, 271, 272, 691; 1 Greenl. Ev. [14 Ed.] sec. 102. Distinctiveness, naturalness and promptness form the salient characteristics and test of their admissibility. If, however, the complaint be not spontaneous and prompt; if it be dragged forth from the reluctant lips of the prosecutrix by all the appliances of skilful interrogation, then it does not possess any of the probative force of a complaint, and should not have accorded to it any value in determining the issue joined. For this cause it is tha.t, where a complaint is thus extorted from unwilling lips, courts have rejected it altogether, because of lacking the dominant characteristics which alone make such utterances receivable in evidence.
In Parker v. State, 10 Atl. Rep. 219, where no complaint was made, but the alleged offense was disclosed some six days afterwards, but only in response to questions, it was said by the court through Bryan, J., “When an outrage has been committed on a woman, the instincts of her nature prompt her to make her wrongs known, and to seek sympathy and assistance. The complaint which she then makes is the natural expression of her feelings. It may, therefore, be shown in evidence as a circumstance which would usually and probably have occurred in case the offense had been committed. But the evidence which the court admitted is not of this nature. It is simply hearsay, a narration of a past event, and not the language of any emotion caused by the supposed occurrence.” See also Whitney v. State, 35 Ind. 503; State v. Burgdorf, 53 Mo. 65; Dunn v. State, 12 N. E. Rep. 826; Eyler v. State, 71 [165]*165Ind. 49, as showing the incompetence of a complaint not ^spontaneously made but extorted by interrogatories.
In Ohio, the immediateness of the complaint is essential to its admissibility. Hornbeck v. State, 35 Ohio St. 277, and cases cited. In Johnson v. State, 17 Ohio, 593, it is said: “ There can be no doubt, that in a case of rape the declarations of the injured female, made immediately or soon after the injury inflicted, are competent testimony, provided the female herself has first been examined ; competent not for the purpose of proving the commission of the offense, but as corroborative of, or contradictory to, her statements made in court. If these declarations are in accordance with the testimony given in court, they tend to strengthen and give effect to that testimonyif against it, the testimony is destroyed. If such testimony were to be •entirely excluded when offered on the part of the prosecution, it would be extremely difficult to convict in any case. For, as a general rule, it would be dangerous to convict, unless immediate complaint was made by the female, to her friends or others.”
In quite a recent case in that state it has been held that where a delay of several days occurs between the •supposed offense and complaint made-, the delay must first be satisfactorily explained before evidence of the complaint can be admitted. Dickman, J., on behalf of the court stating: “A controlling question, however, that arises in the case at bar is: How soon after the offense is committed must the female who has suffered the injury make the declarations in order to render evidence of such declarations admissible ? It is well settled in Ohio that the declarations must be made immediately. Immediateness is essential to their admissibility. ' Such is. the language, substantially, of our decisions on the subject. Whether or not the declarations constitute a part of the res gestae when made immediately after the injury, they largely preclude the idea of the injured party having been practiced upon to fabricate a story. They are presumed [166]*166to be the natural outburst, of outraged feelings, and, if made at all, would naturally be made at the first opportunity, while the injury is yet fresh and aggravating. Silence and delay in making known the wrong would be likely to awaken suspicion and doubt as to the truth of the complainant’s statement. If, says Blackstone, she conceals the injury for any considerable time after she has had an opportunity to complain, such a circumstance would carry a strong presumption, though not conclusive, that her testimony is false or feigned. 4 Comm. 213. But when delay by the prosecutrix in making complaint or declaring the circumstances of the wrong has occurred, such delay may be explained and excused by proof of sufficient cause therefor ; as, for instance, want of suitable opportunity or duress, or threats by the perpetrator of the wrong. Higgins v. People, 58 N. Y. 377; State v. Shettleworth, 18 Minn. 208 (Gil. 191); State v. Knapp, 45 N. H. 148; State v. De Wolf, 8 Conn. 93. Yet, if there has been a want of promptness in making complaint or declaration as to the .particulars of the injury after its perpetration, the court should not admit evidence of the complaint or declaration until the delay has been excused or justified. * * Upon an examination- of the record in the present case we discover no adequate explanation of the delay of the prosecutrix until December 30, before she disclosed the alleged occurrences on the night of the twentieth of December. It does not appear that in the meantime she was under restraint or the influence of threats, or that she apprehended any violence from the accused. And, when she did finally give a detailed account of the offense, it seems to have been drawn out in response to inquiries by her mother, and not to have been spontaneously given by herself. We are, therefore, of opinion that it was error in the court of common i leas to permit the state to give in evidence to tbe jury the declarations and statements made by. the prosecution — not in tb [167]*167presence of the accused — to her mother, Nancy Castor, as late as the thirtieth of December, 1886.” Dunn v. State, supra.
The same doctrine has recently been announced in Michigan (People v. Gage, 28 N. W. Rep. 835), where Champlin, J., said: “It is contended, that the testimony ought not to have been received because of the lapse of time after the outrage and the statement to the mother. The lapse of time occurring after the Injury, and before complaint made, is not the test of admissibility of the evidence, but it may be considered as affecting its weight; and, when complaint is not made promptly, the delay calls for explanation before the court will admit it.”
As to the promptness necessary in such cases, see, also, Eyler v. State, supra; Topolanck v. State, 40 Tex. 160. In the latter case where complaint was not made for several weeks and the testimony of the woman was not supported, it was ruled that a conviction should not be allowed to stand, Reeves, J., saying : “ It would .seem that the defendant was convicted alone on the testimony of the female alleged to have been injured, unsupported by other evidence, and not corroborated by circumstances. She says she told no one of what the defendant had done for several weeks, leaving it to be inferred that she had given information to some one after that time, but what it was is not disclosed. Whatever the disclosure may have been, or whoever may have been the party, that party is not named in her testimony, and hot called as a witness to corroborate her statement. It was several weeks after the offense Is said to have been committed, and long after she had opportunity to complain. * * * Though she was legally competent as a witness, these circumstances diminish the credit to be given to her testimony, and leave the question of the defendant’s guilt in so much doubt that the jury were not authorized to render any other verdict than that of not guilty. And though the [168]*168court cannot express any opinion as to the weight of the evidence, nor sum up the testimony on the trial before the jury, as they are the exclusive judges of the facts, yet, on a motion for a new trial, it is the duty of the court to set the verdict aside when it is contrary to the law and the evidence.”
Speaking of the necessity of corroborating the prosecutrix, Wharton says: “The corpus delicti includes violence done to the woman ; and if this could be shown by proof aside from her testimony, and such proof be not produced, a conviction ought not to be permitted to stand. Such is the general rule at common law.” 1 Crim. Law [9 Ed.] sec. 565.
In Mathews v. State, 19 Neb. 330, when speaking of the absolute need of corroboration, and that corroborating proof was necessary according to Sir Mathew Hale, Maxwell, O. J., said: “ Under our statute the-accused is permitted to testify in his own behalf, and in that regard the statute has changed the common-law rule so that, where his testimony expressly denies that of the prosecutrix, she must be corroborated to authorize a conviction. For this purpose the prosecution may show that the prosecutrix made immediate complaint, and any marks upon her person or clothing which -would indicate a struggle may be given in evidence for the purpose of showing the attack upon her. Her statement cannot be used as evidence in chief, but may be inquired into on cross-examination.” Oleson v. State, 11 Neb. 276; 3 Greenl. Ev., sec. 213.
The law presumes that a woman who has suffered the indignity and brutality of a rape will not submit in silence to the wrong, but will at once take the necessary steps to bring the offender to justice. This was one of the tests of the common law. In that case as there was “no corroborating evidence whatever,” the judgment was reversed.
These remarks and quotations have been made as prefatory to the consideration of the third, fourth, fifth [169]*169and sixth instructions asked by the defendant. Those authorities and the reasons oh which they are based ought to dominate the decision in this cause.
Proceeding now to consider the instructions just mentioned, there can be no doubt that they are in accordance with the law as already laid down and with the facts disclosed by the record. There was no complaint under the terms of the authorities quoted, none that was testified to by any witness for the state, and none but what was the result of questions propounded to the prosecutrix by Al. Baltzell on the Friday next succeeding the Saturday on which the defendant is said to have perpetrated the crime, and he only obtained such, statement by professing to know all about the alfair, and then on the witness stand did not testify to the statement thus obtained, and it only appeared through the testimony of Mrs. Sarah Coons what revelations the' prosecutrix had made to Baltzell. Such a ■so-called complaint does not fulfill the requirements of the law, and the court should have instructed as asked 'in the third instruction, because it was based upon the •evidence and conformed to the law respecting rape as .already set forth. In this case it was not pretended that there was any lack of opportunity to make com■plaint almost immediately, or any excuse offered in the nature of intimidation or fear for delay or failure in doing so.
The fourth, fifth and sixth instructions may be con-’ sidered together. It was a fact abundantly sustained by this record that the testimony of the prosecutrix was uncorroborated by a single iota of evidence ; neither by a complaint, recent, prompt and spontaneous, nor by any outward indicia of violence to the person or torn or disordered clothing or any other token of mental or physical anguish. And such facts Toeing undisputed .the court should hare so instructed the jury, as apart ■of the law in the case. How else, pray, are the jury to ■be informed of their duties except through the media [170]*170of instructions, given by the court ? These observations find full support in a recent case decided during the past year by the court of appeals of New York, where-the action was for damages for an alleged rape, and, though that was a civil action, the point decided is fully applicable to the case at bar. There O’Brirn, J., delivering the opinion of the court, said : “The court, at the request of the defendant, instructed the jury, in substance, that the fact that plaintiff did not disclose the assault complained of within a reasonable time after the opportunity presented itself for her to do so was in itself a reason for impeaching the veracity of her story. It was undisputed, that the plaintiff delayed disclosing to her female friends the alleged conduct of the defendant towards her until she was satisfied of her pregnancy, though she met them frequently, and under circumstances that furnished a very favorable opportunity for her to do so. This was a circumstance bearing upon the plaintiff’s credibility, and the general merits of her case, that was proper for the jury to consider, and the charge of the court in that respect was correct.” People v. O’Sullivan, 104 N. Y. 481; 10 N. E. Rep. 880; Young v. Johnson, 25 N. E. Rep. 363. There is no essential difference between the instructions quoted and the ones under discussion. See, also, to the same effect touching the duty of the court to give similar appropriate instructions on such occasions : Conners v. State, 47 Wis. 523; Higgins v. People, 58 N. Y. 377; Barney v. People, 22 Ill. 160; Hogan v. State, 46 Miss. 274; State v. Moxley, 102 Mo. 374; State v. Wilson, 91 Mo. 410; State v. Witten, 100 Mo. 525; People v. Dohring, 59 N. Y. 374.
In the case last cited, a rape case, the court charged the jury “that the act must have been done by force, and against the will and resistance of the witness Fredrica;” but declined to charge as requested by defendant’s counsel, “that the jury must be satisfied from the evidence, before finding the defendant guilty, [171]*171that Fredrica Brussow resisted the defendant to the extent of her ability on the occasion it is alleged the defendant committed the offense charged against him.” Commenting on this refused instruction Folger, J., observed: “The charge, as made, did in general terms express the facts which made the crime. * * * Coupled with the refusal to charge as requested, it failed, however, to express all that it was necessary for the jury to find. The resistance must be up to the point of being overpowered by actual force, or of inability from loss of strength longer to resist, or from the number of persons attacking resistance must be dangerous or absolutely useless, or there must be duress or fear of death. * * * It was the extent of her ability, and not only that, but the extent of her ability on that occasion, that is, amid the circumstances in which she then was placed, to which the request to charge asked that the attention of the jury be directed. Is it not the law of this crime, in this state, that the woman must have resisted to the extent of her ability on the occasion on which she alleges that this grievous wrong was done her? Is not the law of her conduct in the transaction included in the form of words which the counsel for the prisoner offered to the court ? Would it have been error to have so instructed the jury ? To our thinking, these first two queries can have but one answer, in the affirmative; and that given, the last query must be replied to in the negative.”
Besides, section 4208 of our statute, volume 1, Revised Statutes, 1889, declares that “the court must instruct the jury in writing upon all questions of law arising in the case, which are necessary for their information in giving their verdict [and a failure to so instruct in cases of felony shall be good cause, when the defendant is found guilty, for setting aside the verdict of the jury and granting a new trial].” The words included in brackets were added in the revision of 1889, and only serve to emphasize the previous mandatory [172]*172words. State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 568; State v. Moxley, 102 Mo., loc. cit. 392, and cases cited; State v. Henson, 106 Mo. 66. But granting that the instructions asked were imperfect, still, under the unvarying rule heretofore announced by this court,, the asking of such improper instructions would necessitate the court to give, those which were proper. State v. Mathews, 20 Mo. 55; State v. Jones, 61 Mo. 232; State v. Kilgore, 70 Mo. 546; State v. Lowe, 93 Mo. 547; State v. Young, 99 Mo. 666; State v. Hickam, 95 Mo. 332.
In any event, therefore, proper instructions should’ have been given covering the whole law of the case, and embracing within their scope all that was necessary for the jury to know in order to a proper discharge of their duties when considering of their verdict. Cases are constantly arising in courts of justice where, but-for the-intervention of the court by instructions to the jury as to certain disputable presumptions, it would be impossible to administer the law. For instance, as to the-recent possession of stolen property, as to a receipt for the last quarter’s rent, as to the presumption that a. deed, though entirely missing from the chain of title, was really executed and delivered, and that forgery was-committed in the venue where the forged paper was uttered. State v. Kelly, 73 Mo. 608; State v. Yerger, 86 Mo. 33, and cases cited ; 1 Greenl. Ev., secs. 38, 46.
And if is the duty of the courts to give such instructions as to presumptions to juries, and that of' juries in their findings to give such presumptions their ancient and customary effect. State v. Kelly, supra. Taylor says: “Such being the nature of disputable; presumptions of law, it is obvious that, theoretically, they differ from mere presumptions of fact in three-important particulars. In the first place the judge is bound to explain to the jury whatever legal presumptions arise from the facts proved; next, the jury are-[173]*173bound to give full weight to the presumptions so explained,” etc. 1 Taylor, Ev., sec. 111. Many a verdict would otherwise have its correct current turned awry but for this judicial interposition and information. The instructions asked or their substance should have been given. They were not comments on the evidence, but simply such information as justice demanded the jury should have in order intelligently to consider the facts before them. But not only were the jury denied the benefit of the proper instructions spreading open before their view the presumptive ear marks which the. unbroken experience of ages has recognized as the true indicia of the crime of rape having been perpetrated, but the second instruction given at the instance of the state, though not excepted to, was admirably well calculated to mislead and confuse the jury as to the law of the case, and the necessity of prompt complaint being made, and other circumstances corroborative of the offense charged.
V. But one point remains to be considered ; that is, whether the evidence supports the verdict. A very strong intimation was given by Judge Gantt when delivering the former opinion of this court'that the evidence in this regard was wholly insufficient. If the authorities already cited as to the absolute necessity of corroboration of the prosecutrix, where, as here, the defendant occupies the witness stand and explicitly denies the perpetration of the offense charged, thus creating an equipoise of oath against oath, then the evidence is wholly insufficient, as there is no corroboration whatever in this case. The authorities on this point commend themselves as being in accord with sound reason and universal human experience, and so this case might well be made to rest on the. entire absence of any corroborative evidence.
But further on the absolute insufficiency of the evidence to support a conviction: And first ,as to the facility with which the prosecutrix was raped; raped [174]*174twice, according to her own story ; raped twice in less than twenty-four hours. She told Al. Baltzell this about the journey from her Aunt Martha Botts’ Friday night to Bug Patrick’s : “ That Tom brought a horse. Tom took her on behind and they rode along while in the night; tb,at after they rode a smart ways Tom got off, stood on ground, put his arms around her, slid her off the horse and raped her.” This was testified to by her aunt, Mrs. Coons, and neither Baltzell nor the prosecutrix denied it, and it must, therefore, be taken as true. Now, Tom Patrick was a cripple, with virtually but one arm, and could not put on his shoes nor button his suspenders. Of this rape it is not pretended she made any sort of complaint, but went about with her ravisher in a sort of a go-as-you-please fashion.
Now, as to the second offense with which the defendant is charged. The prosecutrix testifies that: “He gathered me around the arms — I tried to go away, and I tried to ‘ holler,’ and he slapped his hands over my mouth. He drug me into a kind of a brush place right over the fence, there was a gap there was laid off, or just let down, there was a gap there,” and there she states, the defendant ravished her.
Witnesses for the state described the locus in quo where the offense is alleged to have occurred, as “ tolerable thick brush,” where several panels of worm fence had slipped down, the lowest one being about two feet high; sprouts and weeds had grown up between the rails, and blackberry bushes were tolerably thick up to the gap. And Al. Baltzell, one of the witnesses who testified in belialf of the state, and who had visited and carefully examined the locality, and who was well acquainted with the prosecutrix and the defendant, stated as his opinion considering the size of the respective parties, that if the prosecutrix was resisting it would take a pretty hard pull to pull her through the blackberry patch over to the particular spot where the crime is said to have occurred. This opinion of the [175]*175witness was not objected, to, and besides was' competent testimony, where the subject is one of so indefinite and general a nature as not to be the subject of direct proof; the opinions of witnesses are admissible. Greenwell v. Crow, 73 Mo. 638; Eyerman v. Sheehan, 52 Mo. 221; State v. Parker, 96 Mo. 382; State v. Knapp, 45 N. H. 148.
Well, after this somewhat rough and thorny experience of -the prosecutrix, what occurs next ? Does the ravisher flee for it, as in duty bound he should have done, according to the regulations prescribed for the conduct of ravishers in all the old books % Nay, verily ; with infinite courtesy he accompanies his victim nearly to Dug Patrick’.s house; for she distinctly testifies on her direct examination : “He took me back pretty near to the house, where Tom or Dug one was; I don’t know which ; as well as I can remember, he didn’t go clear to the house.” Whether he politely raised his hat, also, in parting salutation as he left her,, does not appear; but about that time defendant is seen by Al. Baltzell and Dug Patrick coming by a route leading north and away from DugPatrickjs house, and it was then six o’clock, the sun settting on that date at 7:20. She says further that “ Millie Patrick was at the house when I got- to it. * '•• * I know Millie was there, am certain of that.” But she made no complaint to her, nor does it appear, though so recently dragged through the brush and briers and over the fence some forty or fifty feet, that her clothing was disordered or torn, her person scratched or showing marks of violence, nor did she seem at all agitated, nor give any signs or signals such as would naturally be*expected from a woman so foully wronged. Nor did she make any complaint to Millie nor to her brother Ben, whom she saw, as she says, ‘ ‘ after we got back from the blackberry patch;” “sun not very high.” These facts furnish their own conclusive commentary. Unless all tokens of a rape having been committed fail, there was none perpetrated here.
[176]*176On this point, Maxwell, C. J., in Mathews v. State, supra, very pertinently observes: “The law, therefore, as evidence that the act was committed against her will, requires the prosecutrix to use all the means in her power to prevent the consummation of the act. If the act is committed with force and against her will, there is a great probability that some marks will be left upon her person or clothing, or both, as evidence of the struggle; and, if she make complaint at the first opportunity, these facts tend to corroborate her testimony that the offense was committed by some one. If no marks are left upon the person or clothing, and no complaint is made at the first opportunity, a doubt is thrown upon the whole charge, and unless the testimony of the prosecutrix is corroborated on material points, where the accused testifies as a witness on his own behalf and denies the charge, the testimony of the prosecutrix alone is not sufficient to warrant a conviction.”
But look further into the testimony; her brother Ben offers to take her over to her uncle George Coons’, but she tells liim that ‘ ‘ they had got her a way to go, and was going to take her up there,” meaning thereby the Patricks. Now, this conversation occurred within less than an hour after her second ravishment, according to her story. That night, or a large portion of it, she spent with her last ravisher and shared with him her virtuous couch in the field, and then on Sunday night he takes her, according to promise, to her uncle George’s, arriving there on Monday afternoon. If the testimony of her aunt Sarah and her daughter Lizzie are worthy of belief, the prosecutrix invited the defendant into the house, introduced him to her aunt and ate and talked with him at the same table, and after dinner her cousin Lizzie played for them on the organ and sang, while the recently arrived couple talked in a friendly manner, and when the defendant went out to get his horse the prosecutrix said she had something [177]*177to tell Mm, and went out to Ms buggy at the gate and talked to him, when he bade them all good bye and drove off.
On the next day, Tuesday, the prosecutrix became desirous of communicating with the defendant and his brother Tom, and so she besought her sister Maggie to write a couple of letters to them ; but upon her sister’s, who had arrived the evening before, stating she “could’nt write good,” the prosecutrix then asked her cousin to write the letters, which she did, the first one being for, and addressed to, the defendant and said as follows:
“ Dear Charley,
“I am well; hope this will find you the same ; my cousin and I are having a nice time. My sister came up yesterday evening ; going to stay until Wednesday evening. I wish you could see her; she is prettier than when she staid with Will and I, for Will nearly starved her to death. I am staying at my uncle George’s. Well, I didn’t go back to Will like you said I would. I told Will I got me a divorce. He fell off the chair, took out his knife and was going to cut his throat, like a fool. Come down some Sunday and stay all day. Write soon. Yours truly,
“Annie Coons.”
The one to Tona was of similar import and written on the same sheet and both put in an envelope, addressed to Charlie Patrick, Forest Springs, Missouri, a place to which he had gone or did go in two or three days after he left, but the prosecutrix having no stamp to put on it, or chance to mail it, it was placed in a book, where the aunt afterwards discovered it, and caused it to be destroyed.
This matter about the letters is testified to by her aunt, her cousin Lizzie and by her sister Maggie, a girl of some fourteen years of age. Her sister also testified that on the next day after her arrival the prosecutrix [178]*178told her, “ Charley Patrick and I are going to run off together, and we want you to go with us, and we will, get you lots of presents.”
On the way over to her uncle’s she and defendant stopped near the house of Warren Scott, early Monday morning, and while the defendant went to the house for some provisions for her, she told Scott, “I and Charley are running off ; you needn’t say anything about it.”
Dr. Haycraft, who had known the prosecutrix and her husband since they were children, testified: “ Reside at Steffenville, Lewis county, Missouri. Am a physician and surgeon. Heard of the difficulty last-summer between Charley Patrick and Annie K. Botts. After I heard of it I was at Mr. George Coons’. Had conversation there with Annie. I said to her, ‘ Why did you not come home with Ben Coons? She said, ‘I didn’t have to.’ I s.aid to her, ‘ Of course, you didn’t have to, but I think you ought to have come with your brother rather than your seducer.’ She said to me, ‘I promised Charley to come with him, and I didn’t want to disappoint him.’”
Laughlin testified that he had met the prosecutrix that fall at her uncle George’s, and “ She told me a little-bit about her troubles in Lewis county. Ed. Coons, a. son of old gentleman Coons, was present. She made this statement on that occasion, 41 have parted from my husband ; I wouldn’t live with him again to save his life.’ To which I replied, ‘Good God, I didn’t know you were married,’ to which -she replied, ‘O yes, I have been, but I like the Patrick boys better than I do Bill Botts.’ ”
Another aunt of prosecutrix, Mrs. Orton, sister of her father, testified: “Annie K. Botts asked Mrs. Coons if she had been subpoenaed to come to Monticello. She said she had not. Annie said, 41 dread th e time when I will have to go to Monticello, but I will do-anything to set the Patrick boys free, — they are not guilty.’ I have been at Mr. George Coons’ two weeks. [179]*179Annie was at John Coons’ at the time of the conversation. I went to see my brother because he was sick. They call it ten miles from George Coons’ to John Coons’.” Mrs. ■Coons asked her also if she would like to die, she said, * I want to die and not to go to Monticello. I will do anything in the world to clear the Patrick boys.’ ”
When the husband of the prosecutrix arrived at her uncle’s she denied that either the defendant or his brother had ever mistreated her, but claimed that Bill, her husband, was jealous and had done so, told him she wouldn’t live with him; that she loved another man hetter than him; she never did love him. She also .admitted having kissed “Charley;” whereupon “Bill” ■said, “ She has kissed him more than once,” and she did not deny it. To these facts Mrs. Coons testified. It is true Ben Coons attempts to impeach his aunt and uncle at whose table he had broken bread, and in whose beds he had slept, by testifying to their willingness to testify for money; but it seems he himself was successfully impeached by some four witnesses. And besides, if this conversation between the prosecutrix and her husband did not occur, it would have been very easy to have brought Bill Botts, the husband, to have testified to the contrary ; but though he was at court this was not done, and so Mrs. Coons’ version of what then occurred must be held correct.
The prosecutrix also told her uncle George, so he testified, that she liked Charley Patrick better, than Will Botts, and when he asked her, “ Why do you prosecute these boys?” she said she had to, “Charley Patrick had gone back on her, and her husband wouldn’t live with her.”
The foregoing excerpts from this exceedingly voluminous record might be greatly multiplied ; they are but types of the rest and abundantly establish the absolute insufficiency of the evidence in this cause.
After reading this record, no hesitancy is felt in saying that it 'would be a libel on jury trials to let this [180]*180verdict stand. In my opinion the judgment should be reversed and the defendant .discharged.
Gantt, J., concurs in all that is said. Brace, J., concurs in paragraphs 2, 3 and 5, and in the result. Macearlane, J., in paragraphs 1, 2, 3 and 5, Black, J.,. in paragraphs 2 and 3, and Thomas, J., doth the like.. Barclay, J., absent.