I am unable to agree with the conclusion reached in paragraph three of the majority opinion. In the statement of facts it appears that defendant had testified that he and the prosecutrix stopped on the way home and that he had sexual intercourse with her, but did not force her. With thisCross-Examination admission from defendant it was proper to askof Defendant. defendant for an explanation of the condition of the body of prosecutrix and of the clothing which she testified she wore on the night of the alleged assault. The questions may be objectionable on the ground that they assumed the truth of the matters referred to therein, but no such objections were made thereto by defendant. The objections made were that the various questions were improper cross-examination of the defendant.
Even though the defendant had not been asked in direct examination to explain the condition of prosecutrix and her clothes, if the bruises were received by her and her clothes were torn at the time of the alleged assault, such facts tended strongly to contradict defendant's testimony that prosecutrix willingly yielded to him. As was said in State v. Foley, 247 Mo. l.c. 638, "Can he be asked by his counsel `to tell what happenedthere;' actually tell part of it, and then take refuge in the statutory privilege? We think not. The State need not categorically follow what was said in his chief examination."
I agree with the conclusions reached in paragraphs four and five of the majority opinion and therefore concur in the result reached by the learned Commissioner. *Page 175