
    Anna Niebyski v. Thomas Welcome.
    October Term, 1921.
    Present: Watson, C. J., Powers, Taylor, Miles, and Slack, JJ.
    Opinion filed January 5, 1922.
    
      Charge to Jury — Substantial Compliance with Bequest.
    
    In an action of tort for assault and battery, charging rape, a request to charge that, if the jury found that the parties had sexual intercourse upon the occasion in question, the plaintiff could recover nothing for that damage, if she consented or voluntarily yielded to such act, was substantially complied with by an instruction that, if the jury found by a preponderance of the evidence that the defendant intentionally used physical force upon the plaintiff, and intentionally laid hands upon her without her consent, and against her will, and had sexual intercourse with her without consent, they should find him liable, but, if they were not so satisfied, their verdict must be for the defendant.
    Action of Tort for assault and battery. Plea, tbe general issue. Trial by jury at tbe September Term, 1920, Windham County, Moulton, J., presiding. Verdict and judgment, for tbe plaintiff. Tbe defendant excepted. Tbe opinion states tbe case.
    
      John E. Gale and Frank E. Barber for tbe defendant.
    
      Chas. S. Chase and Wm. B. Daley for tbe plaintiff.
   Miles, J.

Tbis is an action of tort, charging tbe defendant with an assault and battery. Plea, tbe general issue. The case comes here on tbe exception of tbe defendant. It has once before been here (Niebyski v. Welcome, 93 Vt. 418, 108 Atl. 341), where tbe facts in tbe ease are fully stated. Tbe plaintiff there claimed, as she here claims, that tbe defendant assaulted her and committed rape upon her person, and that was tbe issue in tbe ease on both trials in tbe county court.

On tbe last trial in tbe county court tbe court was requested to charge tbe jury: ‘ ‘ That if tbe jury should find that tbe plaintiff and defendant bad sexual intercourse upon the occasion in question, tbe plaintiff can recover nothing for that damage, if she consented or voluntarily yielded to such act of intercourse.” At the close of the charge tbe defendant excepted as follows: “We except to the refusal of tbe court to comply with our first request.” Tbe request referred to in tbis exception is the one above quoted.

We think tbe charge given sufficiently covered the matter requested. The substance of the request was, that, if tbe jury found that the plaintiff consented or voluntarily yielded to such act, she could not recover any damage occasioned by such intercourse. Tbe court charged-. “If you find by a preponderance of the evidence * * * that the defendant intentionally used physical force upon the plaintiff, and intentionally laid hands upon her without her consent and against her will, and had sexual intercourse with her, without consent, then you must find him liable in this action, and your verdict must be for the plaintiff; but, if you are not so satisfied, your verdict must be for the defendant.” This charge clearly required the jury to find that the intercourse, if had, was without the consent of the plaintiff, and against her will, in order for the plaintiff to recover, and that was all the request required the court to do.

This is the only question upon which the review is sought, and, no-error being found in this regard,

Judgment is affirmed.  