Sego v. Stoddard. at elections after its commission, but it was to devise a plan by which the honest voter could not only be freed from intimidation by making his vote a secret known only to himself and his God, but it was to absolutely shut the door against making merchandise of his vote by the corruptible voter as near as human ingenuity could devise such a plan. That the plan has proven eminently successful is evidenced by the fact that all political parties warmly approve the law, and that thirty odd of our sister States have since substantially adopted it. The idea was not, as appellant's counsel seem to think, to so provide as to render it impossible for the purchased or bribed voter to afterwards identify the ticket he voted by looking at and inspecting it, because the other provisions of the act provide for a destruction of the ballots after they are counted, and before anybody except the officers can see them. But it was to guard against the possibility of the vote seller indicating to the buyer in advance how his ballot would be distinguished from the other ballots in the box, so that the buyer or his agent, who may be one of the election officers, could tell, when the bribed voter's ballot was reached in the count, that such bribed voter had carried out his contract. It was believed that if it could be rendered impossible for the buyer or his agent to identify the ballot voted by the purchased voter from a mere indication beforehand how it should be marked, the desired end would be reached, because it was believed that as a general thing a vote buyer would not risk his money on a vote seller without some assurance other than the mere word of the bribed voter. To that end, a stamp, the same stamp, is required to be used in marking ballots and indicating the voter's choice, instead of a pen or pencil, which could White v. The State. be given a peculiar turn or a peculiar mark so as to distinguish the ballot. If that is true, how much more is it true that to carry out the general intent of the act, the ballots here in question are all in violation of the act. Many of them are expressly declared, by the terms of the act, void, and the others are such as render it possible to identify the ballots by the person engaged in buying them. See Betchel v. Albin, 134 Ind. 193, 33 N. E. Rep. 967. Without counting the two tickets rejected by the court because they were not protested, the appellee has a clear plurality of all the votes by five. The judgment is therefore affirmed. No. 17,061. WHITE V. THE STATE. CRIMINAL LAW.-Assault and Battery with Intent to Commit Rape.When not Sustained.-The charge of assault and battery with intent to commit rape is not sustained where the defendant employed no force to overcome physical resistance, but simply fondled the prosecuting witness and dallied with her person without such violence as to excite her anger or provoke physical resistance from ber, and without effort to secure his desires without her consent. From the Jay Circuit Court. E. E. McGriff and H. T. Sipe, for appellant. A. G. Smith, Attorney-General, and R. H. Hartford, Prosecuting Attorney, for State. HACKNEY, J.-The appellant was charged, tried, and convicted of an assault and battery with intent to commit a rape. The prosecuting witness was appellant's White v. The State. step-daughter, and a married woman. The occurrence is claimed to have taken place in the day time, at the home of the appellant and in one of the three rooms of the first story of a house of five rooms, and while two men were in a room on the second floor, his wife, a servant girl, and three children were in the kitchen, an adjoining room, her brother having just left the room and being upon the premises, and her husband's hired man. within speaking distance from the house. The appellant, his wife, the prosecutrix, and her brother had been engaged in conversation in the sitting room, and after the brother stepped out of the room, the appellant's wife started to the kitchen to assist in preparing supper, remarking, as she did so, that her husband desired to talk with his step-daughter for a few minutes. To this suggestion the prosecutrix assented, as she and the appellant became the only remaining occupants of the sitting room. He asked her to go into the bed room with him, but when she had declined, he lifted her from the chair and pushed her into the bed room. After professions of love for her and repeated protests that he did not intend to harm her, he sat down upon the bed, and soon pulled her down by his side. That which ensued can not be repeated here with proper regard for that chastity of language which should characterize the decisions of a court of justice. The conduct of the appellant was indecent, and his proposals were lascivious, but there was nothing indicating an intention to enforce, by superior power, his lustful desires. She permitted his conduct and entertained his proposals of intrigue with no other resistance than in saying to him: "Now you have gone far enough," and "I am going out of the room," and he did not desist, but continued to entertain her in this manner from five to fifteen White v. The State. minutes, and she did not leave the room, but remained until her mother called her and told her that her husband desired her to go home and prepare his supper. At this time she arose from the bed and went immediately into the presence of her mother, the servant girl and the children, and from them to her own home. As candidly stated by the attorney-general, in his brief, “during the time she and the appellant were locked up in the bed room, and while the alleged criminal assault was being perpetrated, she did not give any alarm or outcry, nor did she fight or in any forcible manner resist the importunities of her assailant. There were no marks of violence upon her person, her clothes were not disarranged, and when she left the room she was not in any perceptible state of excitement.” To none of those who were so convenient did she make any complaint of mistreatment, and her husband did not learn of the occurrence for two weeks after the assault, and then, as the attorney-general states the evidence, "when she divulged it to an aunt in a rather accidental and gossipy manner." During this interval of two weeks, she and the appellant continued to reside in the same immediate neighborhood, and she visited his home and met and greeted him. with cordiality. This statement of the facts rests upon the evidence for the State, and does not include the evidence of the defense, which, to an unbiased mind, was sufficient to establish, beyond a reasonable doubt, that there was much. of fiction in the narrative of the prosecutrix. It is upon this possible state of facts, that the prosecutor asks us to affirm the justice of appellant's conviction and imprisonment in the State's prison. Under the statute then in force, whoever unlawfully had carnal knowledge of a woman forcibly and against White v. The State. her will was guilty of rape, and whoever perpetrated an assault and battery with intent to commit a rape, was guilty of a felony. That the appellant committed an assault and battery upon the prosecutrix, by a rude touching, there can be no doubt, upon her evidence, but that such assault and battery were with intent to enforce carnal knowledge of her against her will, we have the gravest doubts. The opposition of the prosecutrix to the embraces of the appellant was of such a mild and doubtful character as only to encourage him in the belief that appeals, not to violence, but to her animal propensities, would gain her consent. A While we do not find it necessary to agree with the contention of appellant's learned counsel, that the assaulted female must make every possible resistance against the attack of her assailant, to repel the presumption of consent, we do conclude that in the absence of threats to do bodily harm, or other circumstances of duress, a woman of sound mind should more than feign a defense of her honor. If, as in the present case, the resistance offered is so insignificant as to be easily overcome, and no attempt is made by the man to enforce carnal knowledge against such resistance, we have no hesitancy in denying the existence of an intent to commit a rape. Here, accepting all that the prosecutrix claims, the appellant employed no force to overcome physical resistance, he simply fondled her and dallied with her person, without such violence as to excite her anger or provoke physical resistance from her, and without effort to secure his desires without her consent. For this offense of the appellant, the punishment visited upon him is not prescribed by the laws of this State. A simple assault and battery can be no justifica |