State v. Johnson , 28 Vt. 512 ( 1856 )

The opinion of the court was delivered by

Isham, J.

In prosecutions for offences mentioned in this indictment, the prosecutrix is, from necessity, a competent witness for the state. The credibility of her testimony, however, and her general character for truth, as well as for chastity, are matters involved in the trial of the case, and are exclusively to be determined by the jñry. 2 Arch. C. P. 307. On the counts in which the respondent is charged with the crime of rape, we think the inquiry proposed to the prosecutrix, on her cross-examination, whether she had not had sexual intercourse with other men, both before and after the time in which she had testified the offences were committed, was proper, and should have been allowed. The inquiry was particular in specifying the names of the persons with whom, and the places where such connections were had. In all cases of this character, the assent of the witness to the act is the material matter in issue, and on that question the defense generally rests on circumstantial testimony. In determining that question, which is purely a mental act, it is important to ascertain whether her consent would, from her previous habits, be the natural result of her mind, or whether it would be inconsistent with her previous life, and repugnant to all her moral feelings. Such habits as are imputed to the witness by this inquiry, have a tendency to show such consent, as the natural operation of her propensities, and rebut the inference or necessity of actual violence. It is upon this principle that the authorities in England and in this country are uniform in holding that it is competent for the respondent, without any cross-examination of the witness, to introduce witnesses showing that the prosecutrix is a woman of ill fame, of general lightness of character, a street-walker, and that she associates with persons of lewd and dissolute character. Roscoe Cr. Ev. 801. Arch C. P. 307. 3 Stark. Ev. 951. Rex v. Clarke, 2 Starkie N. P. C. 241. State v. Camp, 3 Georgia 419. People v. Abbott, 19 Wend. 192. State v. Jefferson, 6 Iredell 305. Those cases are founded upon the principle that such testimony is competent, not merely for the purpose of impeaching her general character for truth, but to show on her part, a corrupted mind, from which her consent to such an act is the natural result of her inclinations. It certainly would require less proof on such evidence to rebut her testimony of ac-' tual violence, than it would where the mind and moral sensibilities of the witness are uncorrupted by such habits. A jury would be warranted on such testimony, in finding her consent from slight circumstances, and, ordinarily, a conviction would not be justified on her uncorroberated testimony^ But when the character of the prosecutrix is unaffected by such considerations, her testimony showing actual violence, and that no consent was given, would not be overcome but by strong and almost irrefragible proof. If the fact, that the witness is a woman of bad fame, can be shown by the respondent, by introducing witnesses showing her general character, it would seem to follow, as a necessary consequence, that it is competent to prove the same fact on the cross-examination of the prosecutrix, by inquiring into the particular facts upon which her general character is founded; as observed by Williams, J., in Rex v. Martin, 6 Carr. & Payne 562, “the doctrine that you may go into general evidence of bad character in the prosecutrix, and yet not cross examine into the specific facts, I confess, does appear to me to be not in strict accordance with the general rules of evidence.” If, in proof of the bad character of the prosecutrix, the respondent relies upon witnesses introduced by him for. that purpose, he will be confined to the proof of her general character, and will not be permitted to prove specific facts, as it is not to be presumed that the state can be prepared to meet or explain those particular events in her life. But where the prosecutrix is a witness, and the inquiry is directed to her on cross-examination, that reason does not exist, nor does the principle apply, as the presump^ tion in such case arises that, in relation to such specific facts, she is able to give satisfactory explanations, if such explanations can be made. Whether the prosecutrix would he hound to answer such inquiries, as being matters tending to her disgrace, is not the question before us. The question, now, is not one of privilege. It was not upon that ground the inquiry was denied, but the inquiry was held improper when no such privilege was interposed. In such case, we apprehend, the authorities in England and in this country are decisive that it is competent for the respondent, on the cross-examination of the prosecutrix, to make the proposed inquiry. In the case People v. Abbott, 19 Wend. 192, it was held, that “ on the trial of a person charged with the crime of rape, the inquiry may be made of the prosecutrix whether she had previous connection with other men, and that she, in such case, is not privileged from answering.” The subject was examined by Justice Cowen, with his usual learning and research, both on principle and authority; and.it is sufficient to refer to the opinion and reasoning of the court in that case, as fully expressing the views we now entertain on this question. That is the only case in this country which we have been able to find, in which this question has directly arisen. The cases of Rex v. Hodgson, Rus. & R. C. C. 211; 3 Carr. & Payne 589, note (a), and Rex v. Clarke, 2 Starkie N. P. C. 241, both decided in 1812, are relied upon as establishing the principle that such inquiries are improper. In the first case, as reported in 3 Carr. & Payne, the question now before us does not appear to have arisen in the ease, and the court expressed no opinion upon it. The case was an indictment for rape, and the prosecutrix was inquired of, oh her cross-examination, whether she had not before had connection with other persons, and with a particular person 'named. Wood, B., held, that “ she was not bound to answer these questions ;” and this opinion was confirmed by the twelve judges. The decision of the court was upon the mere question of privilege, and not that the inquiry was improper, when the privilege of the witness is not interposed. The prisoner then offered to prove, by witnesses, particular facts not connected with the present charge. But for the reasons which have been stated, such evidence was clearly inadmissible. That is the view taken of- this case in Roscoe’s C. Ev. 164, in which he says, “it does not appear whether the question itself, was objected to, or only that the witness was not bound to answer it.” He thinks the witness was privileged, as it imputed to her an offense punishable by the ecclesiastical law. In that view of it, the case has no bearing on the question now before us.

The case of Rex v. Clarke, was an indictment for an assault, with intent to commit a rape. On the cross-examination of the prosecutrix, she was asked whether she had not been sent twice to the house of correction for having stolen money from her master several years previous. No question of privilege being interposed, she admitted that she had been, and was then permitted to remove the impeachment, by showing her subsequent good character. The prisoner then proposed to call witnesses to impeach her character for chastity, both generally and particularly. The court admitted the evidence as to her general character, but rejected the evidence of particular facts. There was no offer to inquire of the prosecutrix, on her cross-examination, in relation to those particular facts, nor was there any decision of the court that such an inquiry would be improper.- It would seem to be as proper as to inquire of her, whether she had not been confined in the house of correction for larceny.

But if we are to consider these cases as having decided the doctrine as contended for by the counsel for the state, and in that light, by some authors, they have been so considered, it is very clear that, to that extent, those cases are not now regarded as of binding authority in the English courts. The case of Rex. v. Barker, 3 Carr. & Payne 589, decided in 1829, was an indictment for rape in which it was held by Justice Parke, after consultation, that it was competent for the prisoner to inquire of the prosecutrix, whether “ she were not on Friday walking the High street of Oxford, to look out for men ; and whether she was not walking, on Friday last, in the High street, with a woman reputed to be a common prostitute.” The case, it will be perceived, was decided, after a particular reference to the case of Rex v. Hodgson. In the case of Rex v. Martin, 6 Carr. & Payne 562, decided in 1834, it was observed by Williams, J., “ I was counsel in* the case of Rex v. Hodgson. The question in the present case is as to previous intercourse with the prisoner, and the question there was as to previous intercourse with other men. I shall certainly receive the evidence, and I must say that I never could understand the case of Rex v. Hodgson." In the case of Rex v. Aspinwall, 6 Carr. & Payne 562, note (a), it was held, that “the prisoner might show that the prosecutrix had been, previously criminally connected with himself, The circumstances that the prosecutrix was in the streets of Oxford, looking for men, that she was in company with women of ill fame, and that she had had previous connections with the prisoner, are all particular facts, and were not connected with the charges then made, and concerning which the prisoner was permitted to inquire of the prosecutrix, on hei; cross examination. In an action for seducing the plaintiff’s daughter, she may be cross-examined as to the particular acts of intercourse with other men, and if she deny them, then such persons may be called to contradict her, and may be asked as to the fact, and time, and place of the occurrence. Verry v. Watkins, 7 Carr. & Payne 308. When the general rule is given in the authorities,'that evidence of particular facts is not admissible, reference is had to cases where witnesses for that purpose, are introduced by the respondent; and not to cases where the prosecutrix is a witness on the part of the state, and the inquiry is directed personally to her, on her cross-examination. In such case, we think, the inquiry may be properly made, and that the authorities fully sustain the rule on this question, as it was held in the case of The People v. Abbott, 19 Wend. 192.

The testimony of Sarah E. Johnson was also used on the count charging the respondent with the crime of incest. The birth of a child, which she swore was the result of that intercourse, was one circumstance relied upon as a proof of bis guilt. The fact that she had such intercourse with other men, at and about the time the child was begotten, has a strong tendency to impeach her testimony in that particular, and to rebut the evidence of the respondent’s guilt, arising from that circumstance. In prosecutions for bastardy, when a person is charged by the oath of the woman with being the father of the child, such testimony has always been held admissible to rebut her testimony, as to his being the father. Lord v. Schevering, Thatcher C. C. 26. Ginn v. Commonwealth, 5 Litt 300. Fall v. Overseers &c., 3 Mumf. 495. The witness may be interrogated on her cross examination as to t)re particular persons with whom such connections were had, and the time and places of their occurrence. The state, having proved the birth of the child,- and relied upon that circumstance as evidence of the respondent’s guilt, we see no more objection to such inquiries being made on her cross-examination, than in prosecutions for bastardy. New trial granted.