
    Gertrude Dean, an Infant, by her Guardian ad Litem, etc., Resp’t, v. Miners Raplee, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1894.)
    
    1. Assault and Battery—Defilement.
    The fact that a female did not resist sexual intercourse to the utmost, does not,preclude her from maintaining an action for an assault and battery for such act.
    2. Same—Damages.
    She may not, in such case, be entitled to damages by reason of the defilement.
    3. Same—Consent.
    Under the facts and circumstances of this case, the question whether the female submitted voluntarily, was held to be one for the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from "an order denying a motion for a new trial.
    
      I. Sam. Johnson, for app’lt; M M. Bartlett, for resp’t.
   Bradley, J.

It is not claimed that the plaintiff was subjected to any indignity until the spring of 1886. The fact that the plaintiff on none of the occasions to which she refers made any outcry, although some of the places to which she refers were so near the house that she may have been heard; also that.she remained at the defendant’s house so long after the alleged transactions occured, and that she did not then inform her grandmother or aunts of the treatment she had received from the defendant,-—• were circumstances bearing with some force against her credibility. But this was a question for the jury, in view of all the evidence given, not only by the parties, but by the other witnesses so far as it tended to bear in either direction upon it. The jury were permitted by the plaintiff’s evidence to find that she did not consent to the connection, but that the defendant took hold of her, threw her down, and accomplished his purpose, against her will. This would seem to have been sufficient to support the denial of the defendant’s motion to dismiss the complaint, if no further reason for such ruling appeared by the evidence.

The action is for assault and battery by the defendant upon the plaintiff, and his defilement of her is matter in aggravation of damages. And while the charge of the assault could not be sustained if she consented to the connection, if she did not so consent the jury were authorized to find a verdict in favor of the plaintiff. People v. Bransby, 32 N. Y. 525 ; Reg. v. Hallett, 9 Car. & P. 748. In that view, irrespective of the question whether the facts which the evidence tended to prove constituted all the elements requisite to support the charge of rape, the plaintiff may have been permitted to recover ; and no question was raised at the trial to the effect that, in the event she had a verdict, she was not entitled to recover any damages on account of the sexual intercourse had with her by the defendant. The cases cited by the defendant’s counsel do not necessarily hold to the contrary of the proposition above stated. The remark in that respect of the justice who delivered the prevailing opinion in Crossman v. Bradley, 53 Barb. 125, was not necessary to the determination of the questions presented by the exceptions upon which the new trial was granted ; nor does it appear by the case as reported what the facts were, other than such as gave force to the exceptions taken. In the brief digest of the decision in Smith v. Fingar, 1 Alb. Law J. 101, it appears that the exception to refusal to charge that if the plaintiff finally consented to the sexual intercourse she could not recover damages resulting therefrom was held well taken. This was as far as it was essential for the court to go for the purpose of the result of the review. In Young v. Johnson, 46 Hun, 164 ; 11 St. Rep. 590, the charge of the trial court does not appear, but it is said by the defendant’s counsel that the court was requested to and did charge that if the jury found that carnal connection was had, they, to enable her to recover, must further find that it was had without her consent, and against her utmost resistance; and that, if she finally yielded her consent, and ceased her resistance, she could not recover. This was well enough. It was approved by the general term, and the court of appeals affirmed the judgment without expressing any views upon that question. Young v. Johnson, 123 N. Y. 226; 33 St. Rep. 486. In such cases .the evidence of resistance or of nonresistance has an important bearing upon the question whether or not the female consents to the conduct of the person charged with the act. In People v. Bransby, supra, Judge Potter said : “It is manifest that the testimony of the prosecutrix did not establish a case of rape, but did establish reluctance, and some degree of resistance.” And Judge Potter, in the same case, said: “ The real and only question, it will be seen, is, did all this constitute an assault and battery ? It is clear that it did, in the view taken by the jury, and yet the judge left it to the jury, in this proposition, to find that all this would not be an assault and battery if she did not make all the resistance she could, unless the failure to make such extreme resistance was from fear, or under the belief that further resistance would be useless. Such is not the law. * * * If she did not invite or willingly consent to his presence and to his conduct, he was guilty of an assault and battery." And he added that “ the judge at the trial, in his charge upon this proposition, improperly introduced the law in relation to the resistance demanded of complainants in cases of rape, which had no application to a case of assault and battery.” The indictment in that case was for assault and battery, and it appeared by the evidence that the alleged assault was for the purpose of having sexual intercourse, which was accomplished,.with the prosecutrix. While Judge Potter’s opinion was not the prevailing opinion, it was one of concurrence in the result; and it is difficult to see that what is above quoted from it did not state the reasons for the result, as the conclusion reached by the court was that, as the verdict of the jury was intended to negative any assent on the part of the complainant to the act, the conviction was sustained. The present action is also one for alleged assault and battery, and, if the defendant did commit an assault and battery upon the plaintiff by taking hold of her, and throwing her down, and what he did was without her consent and against her will throughout, it does not seem that he can justify it by asserting that she did not resist to the extent which she might have resisted in the consummation of his purpose. Although she might not, in that case, be entitled tore-cover damages arising from the matters alleged in aggravation of the assault, no reason necessarily appears why her action might not be maintained. But upon the assumption that it may be effectually urged on the part of the defendant that unless he is chargeable for the consequences of the more aggravated act in his conduct he is not liable for the less offensive or degrading act in his assault, there seems to have been sufficient in the facts which the evidence tended to prove to send the case to the jury. It is essential, to constitute the charge of rape, that the attempt, and its consummation throughout, be against the will of the female, and that she resist the attempt to ravish her to the extent of her ability at the time and under the circumstances. People v. Dohring, 59 N. Y. 374. The utmost insistence which otherwise is required may not be requisite to the offence if the female has not the possession of her mental or physical powers, or is terrified by threats serious in character, or is in such a place and position as to render resistence useless. The plaintiff was 14 years of age when she went into the family of the defendant. The relation, which it was supposed the defendant assumed to her was in its nature parental, It would seem that she showed him obedience, and was subject to his direction, and that of Mrs Raplee. So far as it appears, such was the apparent relation the first year, and she was subjected to no indecent insult during that time. The occurrences in question commenced, in the spring of 1886, when the plaintiff had arrived at the age of 15 years. The defendant then sought her in a secluded place, and, as she says, suddenly threw her down, against her protest and such resistance as she was, under the circumstances, able to make, an.d had connection with her. Nothing appears to indicate that she had any reason to apprehend such purpose or conduct on his part until he made the alleged assault. The fact that he was a man of mature years, assuming the relation which he did to her when she became a member of his household, and that she was a girl of such tender years, and the influence he may have had upon her, are circumstances entitled to some consideration. The evidence tends to prove that she was a nervous, slender girl, and that he was a strong, vigorous man; and therefore she might be helpless to successfully resist him in his purpose when he had her in his possession, with the controlling intent on his part to gratify his passion. While the utmost resistance on her part, and the greatest resistance which she, under the circumstances, could make, were required of the plaintiff to support the more aggravated charge against the defendant, submission was not necessarily consent. It certainly was not if it was attributed solely to overpowering force on his part. Reg. v. Day, 9 Car. & P. 722; People v. Clemons, 37 Hun. 580. And as was said by the court in People v. Connor, 126 N. Y. 278; 37 St. Rep. 23:

“When an assault is committed by the sudden and unexpected exercise of overpowering force, upon a timid and inexperienced girl, under circumstances indicating power and will of the aggressor to effect his object, and an intention to use any means necessary to accomplish it, it would seem to present a case for a jury to say whether the fear naturally inspired by such circumstances had not taken away or impaired the ability of the assaulted party to make effectual resistance to the assault.”

The jury in the case at bar were permitted by the evidence to find a state of facts as strong in support of the charge against the defendant as those expressed.in the opinion of Chief Judge Euger, and they are not weakened by the fact that the duty of the defendant, arising out of the relation he had. assumed, was to care for the plaintiff, and give her advice and protection. It would be more difficult to account for the failure of the plaintiff to disclose, soon after it was committed by him, this conduct of the defendant, consistently with the facts requisite to sustain the charge against him, if the inference was not premitted that she was so subject to his influence as to render his imperative direction in that respect effectual upon her, or that she was restrained from so doing by the fear of the consequences of his threats, or both. She says that this injunction of silence on the subject was imposed upon her, and threats of the consequences which she otherwise would suffer were made on each of the occasions referred to. As hearing upon the question as to the effect of her delay in making the disclosures, the jury could also properly take into consideration the youth and inexperience of the plaintiff. They have found that her evidence had the support of her credibility; and having so found, the jury were at liberty to determine the questions of fact, as they did, against the defendant; The rule in criminal cases the the jury must, by evidence, be satisfied beyond a reasonable doubt of the guilt of the party charged with offense, has no application to this case. The preponderance of evidence is sufficient to support the action. People v. Briggs, 114 N. Y. 56; 22 St. Rep., 317. The court, having charged substantially the propositions embraced in some of the requests to charge, was not required to repeat them, and there was no error in his refusal to change its phraseology as requested. fSTor was there any error in the refusal to charge as requested upon the subject of threats. There was no evidence of threats of the defendant to cause the plaintiff to submit to his connection with her. While the failure of the plaintiff to make any outcry may have been regarded by the jury as a potent fact against her, there was no error in the refusal of the court to charge that in such case she could not recover unless she was pre vented by fear of personal violence. This was a question for the jury, and it was submitted to them. There seems to have been no error in the rulings at the trial. The judgment and order should be affirmed.  