Simmons, C. J.
Mathews was indicted for the offense of fornication and adultery, and convicted. The facts are set out fully in the official report. It is contended by the accused that under these facts the verdict was contrary to law and the evidence; that if any crime was committed, according to the testimony, it was rape, and not fornication and adultery. The evidence, in brief, shows that Mathews had employed a girl as his clerk; that she did work for him at her father’s house; that he boarded there; that one morning after breakfast, while her father and mother were absent, he and the girl were together in the room of the accused; that he took hold of her person and attempted to throw her upon a lounge; that she resisted; and that he finally “forced her to consent,” and had sexual intercourse with her. He made no threats; there was no fear or intimidation, and the only violence used, as far as appears in the record, was throwing her upon the lounge. There were no bruises upon her person, her clothing was not torn, nor did she make any complaint after the act was committed until it was discovered, months thereafter, that she was pregnant. Under this state of facts, if the accused had been indicted for the offense of rape, the jury would not have been authorized to have convicted him. Rape is the carnal knowledge of a female forcibly and against her will; and if she consent to the sexual intercourse, although that consent may be reluctantly given and although there may be some force used to obtain her consent, the offense can not be rape. Although she may have resisted at the time the accused first took hold of her and at the time she was thrown upon the lounge, yet if she consented after this resistance and before the accomplishment of the sexual act, the offense was not rape. In order that the offense might constitute rape, she must have resisted with all her power and kept up that resistance as long as she had strength. Opposition to the sexual act by mere words is not sufficient. Any consent of the woman, however reluctant, is fatal to a conviction for rape. The passive policy will not do. There must be the utmost reluctance and resistance. As was said by Maxwell, C. J., in the case of Matthews v. State, 19 Neb. 330, s. c. 27 N. W. Rep. 234, “The reason for this rule is apparent, as probably but comparatively few women would admit that they gave their assent to illicit intercourse. If the mere refusal to give express assent was sufficient to establish the crime of rape, a very large proportion of the cases of illicit intercourse, no doubt, could be brought under that head, and no doubt would be, particularly when the conduct of the parties was exposed, and such as to bring them into public observance. The law, therefore, as evidence that the act was committed against her will, requires the prosecutrix to use all the means in her power to prevent the consummation of the act. If the act is committed with force and against her will, there is a great probability that some marks will be left upon her person or clothing, or both, as evidence of the struggle; and if she made complaint at the first opportunity, these facts tend to corroborate her testimony that the offense was committed by some one. If no marks are left upon the person or clothing, and no complaint is made at the first opportunity, a doubt is thrown upon the whole charge.” See also McClain on Criminal Law, vol. 1, § 438 et seq.; Reynolds v. The State, 27 Neb. 90, 42 N. W. Rep. 903; Regina v. Hallett, 38 E. C. L. R. 318, s. c. 9 Car. & P. 748; Jones v. The State, 90 Ga. 616. Judgment affirmed.
All the Justices concurring.