The opinion
Pennewill, C. J.,
charging the jury:
Gentlemen of the jury:—The indictment in this case charges that the prisoner, Walter Brown, did violently and feloniously make an assault upon Bettie Bowman, the prosecuting witness, and her, the said Bettie Bowman, did violently, forcibly and against her will feloniously ravish and carnally know.
The crime charged is that which is commonly known as rape, and is claimed by the state to have been committed by the prisoner on or about the fourteenth of October last, in a woods near the road leading from a paper mill to Milford Cross Roads, in Mill Creek Hundred, this county.
[1, 2] Rape is the carnal knowledge of a woman by force and against her will. Force, either actual or presumptive, is in legal parlance an indispensable element of rape. In a trial for rape the burden is upon the state to prove to the satisfaction of the jury, beyond a reasonable doubt, that the carnal knowledge or sexual intercourse charged was consummated or effected by force *346 and against the will of the prosecuting witness, or by putting her in great fear and terror, before a conviction can be had.
The prisoner denies that he committed an assault of any kind upon the prosecuting witness. He admits that he had sexual intercourse with her at the time and place alleged, but insists that such intercourse was had with her consent and not by force or against her will.
[3] If that be true he cannot be found guilty of the crime charged in the indictment, because rape, as we have said, is the carnal knowledge of or sexual intercourse with a woman, by force and against her will. If sexual intercourse is obtained by milder means, or with the consent or silent submission of the female, it cannot constitute the crime of rape in contemplation of law.
The important question; therefore, for you to determine in this case, is whether the sexual intercourse which the prisoner had with the prosecuting witness was had with her consent or by force or against her will.
[4] In determining that question you should consider all the facts and circumstances as disclosed by the testimony. And in such connection you may consider all the facts preceding, attending and following the act of intercourse, including the conduct of the prosecuting witness, as indicating whether she resisted the prisoner’s intercourse with her or consented thereto.
[5] In cases where the evidence is conflicting, and the jury are unable to reconcile it, they should accept that testimony which they think, under all the circumstances, is most worthy of credit and belief. If after carefully considering all the testimony in this case you believe beyond a reasonable doubt that the prisoner did have sexual intercourse with the prosecuting witness by force and against her will, your verdict should be guilty; but on the other hand, if you believe that the sexual intercourse which the prisoner had with the prosecuting witness was had with her consent and not against her will, and by force, your verdict should be not guilty.
[6, 7] In conclusion, we say that in every criminal case the accused is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt. If after care *347 fully and conscientiously considering and weighing all the evidence in this case, you should entertain a reasonable doubt of the guilt of the prisoner, that doubt should inure to his benefit and your verdict should be not guilty. Of course such a doubt should not be a mere speculative, fanciful or possible doubt, but a real substantial doubt that remains after a careful consideration of all the evidence, and such a doubt as reasonable, fair-minded and conscientious men would entertain after considering all the evidence in the case.
Verdict, guilty, with a recommendation to mercy.