State v. Hartigan

Criminal law. Attempt to commit rape. If one lay hold of a woman and use force upon her, with intent to have sexual intercourse with her against her will, and she resist his attempt for a while, but finally consents to the sexual connection then had with him, he is guilty of an assault, with intent to commit a rape.

Information in two counts, the first charging rape, and the second an assault with intent to commit a rape. Plea not guilty, and trial by jury at the December Term, 1859, — Pierfoint, J., presiding. The prosecution called Orilla Yincent, the person upon whom the offence was alleged to have been committed, as a witness, who testified in substance as follows: “ On Sunday morning, Mr. and Mrs. Rockwell went to meeting. I was their hired girl. No one else there. Respondent came into the house ; offered to play with me. I told him no. He said yes, that is the way the girls always do. He said he wanted something to eat. I said he had only just been to breakfast. I went into the pantry to get him something, to eat. The cat was in there ; I drove her out. He came in and asked me if I did not want to have a little baby. I told him no, I would not have one for three hundred dollars. He took hold of me and pushed me against a flour barrel, i told him to let me go, he hurt me against the barrel. He then pushed me on to the floor and forced me. When he went out I locked the pantry door. 1-Ie went round to the window. I told him if he came into the window 1 would tell Mr. Rockwell. I went up stairs to my room. He came up and wanted me to open the door, and I would not. He said he would pay me if I would not tell; that he would give me a silk shawl; that he had hired to Mr. Rockwell for two or three months, and he would give me anything if I would not tell. When Mrs. Rockwell came home I was setting the table. When he came into the buttery I did not know what he wanted. When he took hold of me I was frightened and could not resist. When I was down he had his hands on my arms and kept them there all the time. His mouth was right on my mouth so that I could not speak or cry out. After he got through I could see marks on my knee and on my arm. Oross-examined. — 1 am twenty-one years old next month; have worked out four years ; the only girl Mrs. Rockwell had ; their family consists of eight persons. Think it was about half an hour after John came into the pantry before he got through. He staid there longer, an hour and a quarter in all. He lay on me just as long as he wanted to. He lay on me till I heard somebody coming. I told him I heard somebody coming ; then he got off. I did hear somebody coming. He then went and locked the front door, He talked with me a little before he took me on to the floor. When he took hold of me, I said go away. I could'say nothing more ; this was all the noise I made ; he had his mouth righf on mine all the time, so that I could not cry out. I told him when he pushed me against the barrel that he hurt me ; then he took me on to th.e floor. His hands were holding my arms all the time, from the time he took me down until he got through. He offered me some money ; I would not take it; he threw it on the floor. This was a little before Mr, Rockwell came home. It was twenty-five cents; I picked it up and gave it to Mr. Rockwell.” Mrs. John Rockwell — “ When I came home Orilla was spreading the table; I spoke to her and passed along; I asked her what was the matter ; she made no complaint until I spoke to her and asked her what was the matter ; she then complained of his abusing her, I saw some prints of nails on her arms, and some spots rather black and blue.” This was all the testimony on the part of the prosecution. The complainant was a woman of good health and strength, of medium size. The prisoner was apparently about thirty years of age, of medium size, and apparent strength. The respondent introduced Dr. Charles L. Allen and Dr. Z. Bass, physicians and surgeons, of good professional character and reputation, who testified that from the size and appearance of the parties, it was practically impossible that sexual connection or penetration could have taken place under the circumstances stated by the witness, Orilla Vincent, unless she had consented thereto, and on cross-examination gave their reasons for such-opinion. This was all the evidence in the case. The court charged the jury in a manner satisfactory to the prisoner’s counsel, as to the first count, and as to the second count, the court told the jury that if they found that the respondent, upon the occasion testified to by Orilla Vincent, laid hold of her person and pushed her against the barrel, and on to the floor, with the intention and for the purpose of having sexual intercourse with her by force and against her will, and that she resisted for a time, but ultimately yielded, they might find him guilty under that count, although they might find that the sexual connection which» he then had with her was with her consent. To this charge the respondent excepted. The jury acquitted the prisoner on the first, and convioted him on the second count,