
    The State of Iowa, Appellee, v. George Chapman, Appellant.
    1. Rape: evidence: corroboration. In a prosecution for rape, evidence that the prosecutrix and the defendant were seen walking along the track of a railroad just prior to the time of the alleged rape, js not, without more, such corroboration of the prosecutrix as the statute requires.
    2. Assault With Intent to Commit Rape: sufficiency of evidence. Evidence in such ease that the prosecutrix was nineteen years of age; that she and the defendant were well acquainted, and that he had made improper proposals to her prior to the time of the alleged rape; that she did not, on account of such proposals, avoid his society; that, at the time of the alleged rape, when the proposal was made to her, she walked away, but returned to him upon his request; that when the proposal was renewed she, in- a bantering way, told him that he was not strong enough; that a struggle then ensued resulting in sexual intercourse; that she did not afterward shun the defendant’s company, nor make complaint of his conduct to any one, until her delicate situation made it necessary for her to tell „ her mother; held, not sufficient to support a verdict of guilty of an assault with an intent to commit rape.
    
      Appeal from Black Hawk District Court. — Hon. John J. Net, Judge.
    Thursday, May 18, 1893.
    Indictment for rape. There was a verdict for art Assault with intent to commit a rape, and the defendant appeals.
    
    Reversed.
    
      Hemenway & Grundy, for appellant.
    
      John Y. Stone, Attorney General, and Thos. A. Cheshire, for the State.
   Granger, J.

The prosecuting witness is one Bina Mork, who was at the time of the alleged offense about nineteen years of age. The following- statement of facts, as disclosed by her testimony, we take from the argument of the appellee: “It appears therefrom that Bina Mork, a girl nineteen years old, who had known the defendant about three years, was going with him ■on foot from Cedar Falls to her home, about six miles distant; that the two walked on the Illinois Central [Railway track a portion of the way home. About three miles from Cedar Falls, at the solicitation of the defendant, they ‘cut across the fields,’ that they might reach home by a shorter and quicker route. She consented to go by the nearer route without much dissent, and after they had started across the fields, and on coming to low ground covered with short grass, the defendant made improper proposals to her. The testimony shows that she first walked away, and that he asked her to come back, and to stop, that he wanted to speak to her. She at first refused, saying that she -wanted to go home. He called her again, and, after some parleying, she came back'to where he was standing. He then renewed his proposals, which she rejected, and finally, in a bantering way, gave him to understand that he was not strong enough. The testimony shows that he seized her, there was a struggle, and he threw her down, and against her wishes and desires had improper relations with her; she at the time endeavoring to free herself from his grasp and make her escape.”

I. The only corroboration relied upon, as stated by the district court in its instructions, is that of two witnesses who testified that they saw the defendant and the prosecuting witness together on the track of the Illinois Central Bailway at the time of which she testified. They saw nothing more. They did not see them leave the traek, nor give a word of testimony corroborating the complainant, except that the defendant was with her on the track. There is nothing in such testimony tending to connect him with the offense. Nothing in their testimony shows the parties out of the sight of others, so that there was really an opportunity to commit such an offense. This court has said that it is not enough, as corroboration, to show an opportunity in seduction cases, and surely no less will suffice in a case of this kind. State v. Painter, 50 Iowa, 317; State v. Araah, 55 Iowa, 258.

II. For the crime of which the defendant stands -convicted, an assault with intent to commit a rape, corroboration is not essential, if the testimony of the prosecutrix is otherwise sufficient. It may be conceded that there was sexual intercourse between the prosecuting witness and the defendant at the time of the alleged offense. The statement above quoted, which is that of the appellee, is a comparatively strong showing that there was no assault with intent to commit a rape. The statement might be made much broader from her testimony on the trial. The statement shows that, without any suggestion of or attempt at force on his part, but in response to his “proposals” for intercourse, which she declined, she, “in a bantering way, gave him to understand that he was not strong enough” to have intercourse with her, and that what he did was in pursuance of her bantering statement. This was not the first time he had made such proposals to her, and while she claims, in parts of her testimony, that she tried to avoid being in his company alone, the reverse of it appears quite unmistakably certain. With full knowledge of his desires, and his disposition to urge them when opportunity offered, she gave him such opportunities when they could and should have been avoided. Her own statements show that on the day of the alleged offense, after his proposals, she walked away, and then came back, upon his invitation, to talk with Mm, when it was manifest that the talk would he to further press Ms solicitations for intercourse; and it was after she came hack, and he renewed Ms proposals, that she made the “bantering” statement. Her failure afterwards to make known the occurrence until her delicate situation made it necessary to tell her mother, her going directly to the home of the defendant, where she worked, with him, or nearly there, and her entire conduct after the affair, taken in connection with that previous, presents a state of facts so inconsistent with her forcible defilement, which must have been’-under her statements, that we think the verdict without sufficient support, because of which the judgment is reversed.  