People v. Lee

The defendant was convicted of the crime of rape, charged to have been committed upon a child thirteen years of age. The defendant contends that the girl consented, but that the offense was not consummated. Upon these two points there was a conflict between the defendant and the prosecutrix.

A reversal is claimed on two grounds:

The girl was under the age of fourteen, and, therefore, whether she consented or not was immaterial, as affecting the guilt of *86 the defendant. But the undisputed facts show that enough was done to induce the prosecutrix to make an outcry, if she believed it would be of any avail or was not so intimidated that she was afraid to do so, if she knew' or realized the extent of the outrage upon her and was not consenting thereto. There was, therefore, no probative force in the alleged fact.

But in no case should such an instruction be given. It would have been a clear invasion of the province of the jury, and such interference is forbidden in this state. The court may be called upon under some circumstances to say whether there is or is not any evidence tending to prove an essential fact, but the court should never do this to aid the jury in determining a…