
    THE STATE v. WILLIAM MARSHALL.
    The prisoner, a stranger to the prosecutrix, who was a girl of between 13 and 14 years of age, had met her upon her way from a neighbor’s, and ofiered to go home with her, a distance of less than a mile; his offer being accepted, he dismissed some children who had been acting as her guides; Seld, that the girl’s following him out of the road for a short distance into the woods ; as also her not stopping upon her way home, after the alleged rape had been committed, to tell her aunt of it (she having passed the aunt’s house and seen her) — did not warrant a prayer for a charge to the jury that the evidence of the prosecutrix should be disregarded altogether.
    In order to confirm the evidence of a witness, it is competent to ask whether it does not concur with statements previously made by the witness, out of court.
    (The case of The State v. George, 4 Ire, 324, cited and approved.)
    Rape, tried at Spring Term, 1866, of McDowell Superior Court, before Shipp, J. Prom the judgment in the case, the defendant appealed to this court.
    
      The person upon whom the crime was committed, Sarah Rooker, was a girl of between 13 and 14 years of age, and stated that having been upon a visit at a neighbor’s house in Rutherford county, about 3 or 4 o’clock she started to her father’s house, which was a mile or so distant. That for company and as guides she took with her'two children of the neighbor. That at about half a mile from the house they met the prisoner, who proposed to go home with her, and sent the children back. " They proceeded on the road towards the home of the witness, he leading and she following, until they came to the head of a hollow or ravine, when the prisoner turned off from the road, and witness followed. That very soon after they left the road, the prisoner by violence and threats committed the crime in question, and having led her back to the road, threatened that he would kill her if she told what had occurred. She then went home, passing the house of an aunt, (whom she saw,) but did not stop or tell her aunt what had happened. Immediately upon reaching home, she told her mother, who, upon examination, found marks of great violence upon her person.
    The mother was examined upon the trial, and having been asked by the Solicitor whether the statement made by Sarah at the trial was the same as that made upon her return home, stated that it was.
    What else was material at the trial and in the charge of his Honor appears in the opinion of the court.
    
      Attorney G-eneral, for the State.
    No counsel in this court for the' defendant.
   Reade, J.

The prisoner moved for a new trial upon three grounds:

1. That inasmuch as the witness Sarah Rooker, upon whom the rape was charged to have been committed, did not disclose the fact to the first person whom she saw after the occurrence, her testimony was to be disregarded altogether.

2. That inasmuch as Sarah Rooker followed the prisoner into the woods, it was conclusive evidence of her assent to the act.

3. That it was error to allow the State to support the testimony of the said Sarah Rooker, by proving that she gave the same account of the transaction when she first disclosed it to her mother.

As applicable to the first two grounds his Honor charged the jury, “ that if the witness Sarah Rooker was to be believed, the charge in the indictment was made out. But it was' exclusively for them to say whether she had told the truth. That if they were satisfied from all the facts and circumstances of the case that she had not sworn truly, or that she had assented to the act, it was their duty to acquit. That in coming to a conclusion they had the right to take into consideration the conduct of the witness, and all the circumstances surrounding the case.”

We think the first and second grounds are without force, and that the charge of his Honor was correct, 4 Bl. Com., 213, Arch. Crim. Plead., 260.

The competency of the evidence objected to, in the prisoner’s third ground, is settled in State v. George, 8 Ire., 324, and in subsequent decisions.

There was a motion in arrest of judgment, but no cause was assigned. After a careful examination of the record, we find no cause fo^ arrest of judgment.

It must be certified to the Superior Court that there is no error in the judgment.

Pee Curiam. Ordered to be certified accordingly.  