I dissent. The contested points in this case have been the subject of many decisions, among which there has been considerable conflict. That there is a conflict in the California decisions is pointed out in State v. Apley, 25 N.D. 298 [48 L.R.A. (N.S.) 269, 141 N.W. 740]. It may be asserted without question that the weight of authority is contrary to the rule expressed in the foregoing opinion which is sustained by certain decisions in this state.
It has been held that in a prosecution for forcible rape the defendant may show that the prosecutrix has had illicit relations with other men. (People v. Shea, 125 Cal. 151 [57 P. 885].) However, it is there conceded that this ruling is against the weight of authority elsewhere, and the decision is based upon that rendered in People v. Benson, 6 Cal. 221 [65 Am. Dec. 506], which to my mind is a most ill-considered opinion. This also was the view of Mr. Justice McFarland, who dissented in the Shea case. Of the authorities cited in the last-named case, I regard none as in point. When it is said that a prosecutrix in a case of this nature puts her chastity in issue by merely testifying that she resisted the defendant's force, and the announcement of this amazing rule is based upon decisions in seduction cases governed by particular statutes having to do with that wrong, it seems obvious that the opinion is open to grave doubt as to its soundness. To my mind, such a rule is abhorrent. It would be as reasonable and as right to allow proof that a defendant charged with murder or larceny has upon some other and remote occasion committed a similar offense.
But though a prosecutrix might, because our supreme court has so held in the Benson and Shea cases, be shown to have consented to intercourse with someone other than the defendant, it has not been held even in this state that any proof falling short of such an act may be shown. Nor have we any decision making it proper to establish such a fact on cross-examination where the direct examination has been as limited as that in the instant case. If the evidence in question was admissible at all, it would have been proper only as a matter of defense.
To my mind, the story told by the prosecutrix is not inherently improbable. It will serve no good purpose to argue this phase of the matter in this dissent, but if her *Page 225 testimony is not highly improbable, and since it is concededly amply supported by corroborative evidence, I think the verdict of the jury should not be disturbed on appeal. I am quite convinced of the defendant's guilt, and believe that even if error was committed in the exclusion of evidence suggested by way of defense tending to show that the prosecutrix had been indiscreet, but not immoral, such a ruling did not affect the substantial rights of the defendant, nor result in a miscarriage of justice.
A petition for a rehearing of this cause was denied by the District Court of Appeal on March 13, 1929, and the following opinion then rendered thereon: