The opinion
Thornton, J., concurring
I concur in the judgment, and in what is said in the opinion, with the exception of that portion of it which relates to the instruction given by the court below as *601 to resistance on the part of the prosecutrix. The court thus directed the jury:
“ Resistance on the part of the woman must also be established by the evidence; but it is not necessary to show that she used all the resistance in her power. If her resistance was in good faith, and honestly made, and was the utmost according to her light, and the circumstances under which she was placed, it is sufficient.”
The court refused to give the instructions on the point of resistance by the female asked by the defendant. These instructions are numbered 7, 8, and 9. No. 7 was refused, on the ground that it is given in the instructions of the court. Nos. 8 and 9 were refused, because properly given in the instructions of the court.
I do not think the portion of the instructions given which is quoted above, properly given. It does not lay down a correct rule for the guidance of the jury. The jury was told that if the resistance was made in good faith and honestly, and was the utmost according to her light, and the circumstances under which she was placed, it was sufficient. The words, “ according to her light ’’ furnished no rule to the jury. What their meaning is, we are at a loss to perceive. What could the jury find as to the light of the woman ? What could they know of the internal state of her mind at the time of the commission of the assault on her, which is obviously referred to in the words “ according to her light ” ? These words were calculated to mislead and confuse the jury, and, in my opinion, constitute error for which defendant is entitled to a reversal, especially where the instructions asked on his behalf were refused by the court.
In my opinon the correct rule, as to resistance is laid down in People v. Dohring, 59 N. Y. 374 . Further, in my opinion the court erred in not giving request No. 23 asked by defendant. Though awkwardly expressed, it called the attention of the jury to the caution always given to it in prosecutions for rape, and which, in such cases, a court should never fail to give clearly and distinctly.