I am so profoundly convinced that the opinion of the Court in this case is such a departure from the rule followed by this court on appeal from judgments of trial courts that I feel compelled to state my reasons therefor.

The reversal of the judgment of conviction seems to have been arrived at from two statements made by the prosecutrix, which are, (1) that while she was lying on the bed (whether because of her being pushed, or voluntarily assumed) defendant separated her limbs without the use of his hands, and (2) that she did not make an outcry or scream while defendant was preparing for the intercourse, nor while engaged in it.

In commenting on statement (1), the opinion says: "It is inconceivable that the crime of rape can be committed in the manner related by the prosecuting witness. She stated that appellant did not use his hands except to rest them on the bed; * * *." The reason given for such conclusion is contained in the last sentence of the excerpt supra saying: "She stated that appellant did not use his hands except to rest them on the bed; * * *." Finally in giving the reason for reversal of the judgment and directing a peremptory instruction of the acquittal if the evidence was substantially the same on another trial, if one should be had, the opinion said: "But where the prosecuting witness relates circumstances which, in the light of human experience, preclude the possibility, or even the probability, of the crime having been committed, we will not hesitate to reverse the judgment and set aside the conviction."

Clearly the conclusion reached by the majority opinion was based upon the fact as stated in the first excerpt supra that "appellant did not use his hands except to rest them on the bed."

I am no expert in such matters, but it furnishes no *Page 749 mountain to be climbed for me to conclude that a man weighing 185 pounds, more than six feet tall, 58 years of age and in sound health so far as the record shows, would have much difficulty in performing the task under consideration to a 19 year old mother with a four month old baby. Neither do I conclude that the court could take judicial notice that such a task would be impossible, and to thereby paint the prosecutrix as a perjurer in making that statement. Had I the time I feel sure that I could unearth many convictions for a like offense, and brought to this Court for review, wherein we affirmed the judgment, when the prosecutrix testified to similar statements, especially where other testimony in the case points to defendant's guilt as it does in this one, and to which I will hereafter refer, but which is not inserted in the opinion. I will therefore at this point desist from further comment on statement (1).

Referring to statement (2) supra, the opinion says: "It was shown by uncontradicted evidence that a person talking in an ordinary tone of voice in Mrs. Hutchinson's bedroom could be heard by a person in the room which Mrs. May occupied while the alleged crime was being committed."

The unquoted testimony uncontradictedly shows that no one at the time was in the first floor apartment of the building, except Rev. May and his wife. The former was, at the precise time of the unlawful act, either in the basement or in the kitchen located on the first floor, whilst Mrs. May was in a room painting windows. She stated that the door from the vestibule to that room was closed and not that she could have heard a complaint from the prosecutrix emanating from her room in an ordinary tone of voice — but that, "I believe I could if she hollered loud enough," clearly refuting the idea that an outcry could have been heard if it had "been whispered" as the opinion states. The prosecutrix admitted that she made no outcry, though she did threaten to do so, but was prevented by defendant saying to her, "You had better not." She also testified, in substance, that when defendant so spoke his eyes and features depicted viciousness, and that she was "frightened and upset."

It is not difficult to conceive in the circumstances (consisting of the lingering of defendant in and about the building occupied by the prosecutrix, plus the disparity *Page 750 in their physique and strength) that the latter would naturally conclude that "the better part of valor" would be to postpone giving the alarm until the manifested probable danger to her personal safety was removed by the defendant's departure. Moreover, it will be noted that the prosecutrix immediately went to the bathroom of her apartment and locked the door where she waited until she heard the front door of the downstairs floor slam, thereby indicating to her that her assailant had departed from the premises. She immediately went downstairs where she met Mrs. May and requested the latter to come to her room where she publicized what had occurred. Within a few minutes thereafter Mr. May appeared and he and his wife uncontradictedly stated that the prosecutrix was then weeping, nervous and shocked, so much so that she was immediately carried by them to the doctor at a hospital. The physician found evidence of copulation, but could not tell how recent it had occurred. From the hospital prosecutrix was taken to police headquarters where she signed an affidavit for the arrest and prosecution of defendant, and later appeared before the grand jury and procured the indictment against him.

Paraphrasing the statement hereinbefore inserted from the opinion, I unhesitatingly say that it is "inconceivable" that a woman would perjure herself in order to publicize defendant's assault upon her, which would inevitably be followed by suspicion and talk by gossipers with more or less consequential disgrace and humiliation to the perjurer. It is also "inconceivable" to me that a woman who had invited, by her overtures and advancements, one of the opposite sex to have intercourse with her, would immediately commence crying and take steps to incarcerate her assailant within the walls of the penitentiary, or to suffer other punishment that might be inflicted if he were found guilty. By her acts immediately following within three or four hours — she procured a warrant for defendant's arrest by which she sought to have him placed in a position where such future attacks by him to her, or to other women, would be prevented. However, if she had been the amorous creature that defendant attempted to picture in his testimony, it would then be exceedingly strange that she sought his removal from the vicinity while serving his sentence and to thereby "kill the goose that laid the golden egg" *Page 751 which gave her such immeasurable satisfaction. Moreover, several policemen stated, and defendant never denied it (but which testimony is not quoted in the opinion) that defendant said to them that he pushed the prosecutrix over on the bed, that he opened his trousers and lifted her skirts, but that he made no entrance because of evacuating before doing so, yet on the witness stand he admitted complete performance of his purpose.

It should also be observed that on defendant's first trip to the apartment of prosecutrix he looked at her baby, which purpose he stated was the only one that induced him to enter the room of prosecutrix. Almost immediately after entering her room defendant asked her how long her husband was away at his work, receiving the answer that it was from 7 a. m. until 6 p. m. without returning for lunch. He thus assured himself of no interference from that source in accomplishing his purpose. His lingering excited suspicion in her mind, and she got up and went downstairs followed by defendant who went back into the kitchen and engaged in conversation with Rev. May. Prosecutrix, thinking that he had absented himself from the premises, went back to her room soon to be followed by the reappearance of defendant, his purpose in returning thereto, being, as he stated, to bid goodbye to her and to again see the baby, from which I am reminded of the quotation

"O what a tangled web we weave, When first we practice to deceive!"

All testimony in behalf of defendant in an effort to besmirch the character of prosecutrix was denied by her, and her reputation for truth, veracity, morality and uprightness was proven by her pastor, his wife and by numerous other acquaintances of her who knew her from childhood. The only attack thereon was made by defendant's son and daughter. In solving the issue of guilt or innocence of defendant both the jury and the court no doubt, and very properly, gave but little weight to the defendant's account of the transaction, since the incentive to escape punishment and to retain his freedom was so great as to overcome the obligation of his oath as a witness. He was confronted with the possible stigma of being branded as a felon with a long term of at least ten years' confinement in the penitentiary — probably for a longer period than the minimum of ten years that the *Page 752 jury gave him, and possibly death; whilst the prosecutrix had all to lose and nothing to gain by divulging the transaction, except the commendable determination to punish her assailant. No other member of the public had witnessed the transaction, apparently indicating her consent thereto or willing participation therein, so as to induce her to falsify the facts in order to escape lasting disgrace. The opinion therefore appears to be supported only by the two weak crutches contained in statements (1) and (2), supra.

Many other facts, more or less pointing to defendant's guilt, appear in the testimony, but I will not attempt to recite, or to comment upon them, in this dissenting opinion, concluding it with the remark that if the prosecutrix consented to and invited the intercourse, then, instead of crying and weeping after it was over, she would have, no doubt, uttered the refrain that "Happy Days are Here Again." But instead she cried. One wonders why she wept, if defendant's account of the transaction be true. In that event she had reached her goal, and realized her dream; then why cry? The jury and the court, who perhaps knew the witnesses and who saw them while testifying, penetrated the "tangled web" and correctly answered the question.

Believing that the opinion strikes a body blow to the enforcement of the criminal laws — including, of course, the one involved, which was created centuries ago for the protection of the women of the land — I most respectfully dissent, in which Judge Siler concurs.