People v. Russell ( 1927 )

We are persuaded that these rulings were erroneous. The general rule is that the chastity or want of chastity of the prosecutrix under the age of consent is unimportant in a statutory rape case, and that testimony on that subject is, therefore, immaterial. But this rule, like most rules, has its exceptions. Where the prosecution, in corroboration of the testimony of the prosecutrix, introduces proof to the effect that the prosecutrix is pregnant or that a physical examination discloses that her person has been violated by some one at about the time charged, the defendant should be permitted to establish either by direct or circumstantial evidence that some one other than himself is or may be responsible for the condition established. Thus inPeople v. Keller, 227 Mich. 520, there had been an examination by a physician who testified to a condition of prosecutrix which might have resulted from sexual intercourse. It was held (quoting from the syllabus):

"In a prosecution for statutory rape by defendant upon his daughter, testimony by another daughter as to admissions made by prosecutrix of relations with other men which would account for her physical condition, held, admissible."

To the same effect is People v. Werner, 221 Mich. 123. See, also, People v. Craig, 116 Mich. 388; People v. Kaminsky,73 Mich. 637. The exception to the rule finds support in other jurisdictions. People v. Flaherty, 79 Hun (N.Y.), 48;Bice v. State, 37 Tex.Crim. Rep. 38 (38 S.W. 803); Kanert v.State, 92 Neb. 14 (137 N.W. 975); Nugent v. State, 18 Ala. 521; People v. Currie, 14 Cal.App. 67 (111 P. 108); State v. Bebb, 125 Iowa, 494 (101 N.W. 189); State v.Mobley, 44 Wn. 549 (87 P. 815). The last cited case is so nearly on all fours with the one before us that we quote quite liberally from it. It was there said by Mr. Justice Crow, speaking for the court:

"In refusing to permit answers to the above questions, the trial court committed prejudicial error. The State was relying for conviction upon evidence of the prosecutrix, which was without corroboration except in so far as such corroboration was afforded by her condition of pregnancy, if such condition in fact existed. She attributed such alleged pregnancy to the acts of appellant. The jury undoubtedly knew from her personal appearance upon the witness stand whether she was telling the truth as to her pregnancy, the usual period of gestation having then about expired. If her testimony in this regard was manifestly truthful, it necessarily appeared that some person was guilty of the offense for which the appellant was on trial. If he could do so, the appellant was therefore legally entitled to show by competent evidence what the habits and conduct of the prosecuting witness had been at or about the time she claimed he had sustained illicit relations with her. If, in fact, this young girl was habitually away from home night after night, and made a practice of returning at any time from midnight until 4 o'clock in the morning, she was certainly conducting herself in a highly improper manner, and was guilty of conduct which, to say the least, would seriously reflect upon her character for chastity and affect her credibility. The dates fixed by appellant's counsel in the questions above mentioned exactly coincided with those upon which she had charged appellant. The testimony of these witnesses, had the same been admitted, might have developed evidence tending to account for the condition of the prosecutrix, consistently with the innocence of appellant. The courts have almost universally recognized the difficulty under which a defendant necessarily labors in seeking to exculpate himself from a charge of this character when once made, and a considerable liberality should be exercised in permitting him to fully show the situation of the parties and all the circumstances surrounding them at or about the date of the act charged; and this is especially proper in this State where a conviction may be had upon the unsupported testimony of the prosecuting witness."

The conviction will be set aside and a new trial granted.

SHARPE, C.J., and BIRD, FLANNIGAN, WIEST, CLARK, and McDONALD, JJ., concurred.

The late Justice SNOW took no part in this decision.