State v. Reed , 39 Vt. 417 ( 1867 )

The opinion of the court was delivered by

Steele, J.

The exact question raised by the exceptions was thoroughly discussed and decided in favor of the respondent in the case State v. Johnson, 28 Vt. 512. Before that decision was made, the question was, at least, debatable both upon reason and authority, and it was, perhaps, more important that the point should be settled, than how it was settled. The court were not unanimous in that decision, hut we should require stroug reasons for overruling the case and denying a respondent the privilege which the majority of the court then solemnly held was his right. In this view, we have not thought it necessary, even if fitting, to enter into an extended consideration of the authorities upon the subject. We do not wish, however, to be considered as casting a doubt upon the original correctness in principle of that decision. Testimony of the general reputation for chastity of the person who claims to have been the victim of the crime of rape, and testimony of her previous illicit intercourse with the prisoner, are, upon all the authorities, confessedly admissible as tending to show that the act of which she complains may not have been against her will. The testimony here offered has practically the same tendency though inferior in force and conclusiveness. The difference is rather in the degree than in the quality of the evidence. If the woman, alleged to have been forced, had admitted on her cross-examination that she had sexual intercourse beside the railroad track with the person named, the admission would justly have had considerable weight in favor of the prisoner, particularly connected, as it was, with testimony of her general bad reputation for chastity. The jury would be less ready to conclude that a woman, who had once improperly yielded, afterwards properly resisted, than they would if she had been a woman of unquestioned virtue. The defence, in cases of this nature, usually rests mainly upon circumstances, and the cross-examination of the party who complains that she has been forced. Such cross-examination should, therefore, be allowed to be as unrestrained and searching, as is consistent with the rules of law. We are not disposed, in order to abridge this privilege, to overrule a recent decision of the supreme court in this state.

, New trial granted.