Citing: State v. Richardson, 63 Mont. 322, 207 P. 124;People v. Knight, 5 Cal. Unrep. 231, 43 P. 6; People v.Benson, 6 Cal. 221, 65 Am. Dec. 506; People v. Gage,62 Mich. 271, 4 Am. St. Rep. 854, 28 N.W. 835; 33 Cyc. 1481, 1483. Citing: State v. Inich, 55 Mont. 1, 173 P. 230; State v. Richardson, 63 Mont. 322, 207 P. 124; State v. Duncan,82 Mont. 170, 179, 266 P. 400; State v. Mahoney, 24 Mont. 281,61 P. 647. Defendant was convicted of the crime of rape upon his twelve-year old daughter, and judgment was pronounced against him. His motion for a new trial was denied, and he appealed from the judgment and from the order denying the motion. Only such portion of the evidence will be alluded to as we deem necessary in considering the questions raised.
The record discloses that prosecutrix, Ivy Paddock, and the defendant, were living together at the home of defendant's sister at Glendive, when the crime is alleged to have been committed. No one else was living in the house at the time. Prosecutrix testified that she and the defendant slept in the same bed and that the crime was committed on July 3, 1928. On her cross-examination defendant propounded the following question: "Did you not at that time [referring to the time when she was living with her father in Glendive] have a conversation with your father, in which your mother was discussed, and you told your father that your mother couldn't do anything wrong, and that just before you left Minneapolis, in May, 1928, your mother had let you stay all night with John Broberg?" Objection to this question was sustained. *Page 572
On the fifteenth day of March, 1929, Dr. Danskin examined the private organs of prosecutrix, and found that the vaginal orifice was large enough to have been entered at some time previous to the examination, and that the hymen had been broken. He said it was impossible to determine the exact time when this may have happened, and that the condition which he found might have been brought about otherwise than through sexual intercourse.
The defendant denied that he ever had sexual intercourse with prosecutrix. He offered to prove that prosecutrix told him that just before she left Minneapolis in May, 1928, her mother let her stay all night with John Broberg, for which her mother received $5 from John Broberg. This evidence was excluded by the court, and error is assigned in so doing, and in refusing permission to cross-examine prosecutrix relative to this statement. Defendant contends that this evidence should have been admitted to explain, consistently with his innocence, the physical condition of prosecutrix as disclosed by the doctor's examination.
The general rule is that it is no defense to an accusation such as this that prosecutrix may have had improper relations with other men. (State v. Richardson, 63 Mont. 322,207 P. 124.) An exception to the rule exists in some cases, and evidence of improper relations with other men is admitted to rebut the testimony of a physician regarding the absence of the hymen, or to account for a condition of pregnancy. (33 Cyc. 1481.) Defendant contends that by reason of the doctor's testimony this case falls within the exception, and that it was error to exclude the offered evidence. The opinion in the case of State v.Richardson, supra, is attacked as being erroneous, and the contention is made that the dissenting opinion of Mr. Justice Galen in that case states the correct rule applicable to a case such as this.
There are many cases supporting the view that where the state introduces evidence showing that the acts of defendant brought about a condition of pregnancy, or a destruction of the hymen, the defendant has the right to show that prosecutrix *Page 573 had improper relations with other men at about the time when she claims the defendant had intercourse with her, in order to account for her condition compatibly with his innocence. Among such cases are the following: State v. McPadden, 150 Minn. 62,184 N.W. 568; Commonwealth v. Duff, 245 Mass. 81,139 N.E. 351; Atkeison v. State, 100 Tex.Crim. Rep.,273 S.W. 595; O'Chiato v. People, 73 Colo. 192, 214 P. 404; Climer v. State, 162 Ark. 355, 258 S.W. 323; Thomas v. State,178 Ark. 381, 11 S.W.2d 771; Fuller v. State, 23 Ariz. 489,205 P. 324; State v. Orton, 69 Utah, 304, 254 P. 1003;Kayes v. Commonwealth, 221 Ky. 474, 298 S.W. 1096; State v.Edwards, 33 N.M. 51, 261 P. 806; State v. Quirk, 38 Wyo. 462,268 P. 189; State v. Williams, 161 La. 851, 109 So. 515; People v. Russell, 241 Mich. 125, 216 N.W. 441; State v. Kraus, 175 Minn. 174, 220 N.W. 547. But here there was no evidence introduced by the state that defendant caused the physical condition of prosecutrix found by the physician. The doctor did not testify that in his opinion the hymen had been ruptured at or about the time that defendant is alleged to have had intercourse with prosecutrix. He frankly conceded that it was impossible to tell when the act causing the breaking of the hymen had taken place. He also said it might have been caused otherwise than through sexual intercourse. His evidence did not corroborate that of prosecutrix that defendant had intercourse with her (People v. Shaw, 158 A.D. 146, 142 N.Y. Supp. 782); nor did it go so far as to show that anyone actually had, but only that someone might have had, copulation with her.
Prosecutrix did not deny that she had had intercourse with other men, as in the Richardson Case, and hence the question whether we would adhere to the views in that case is not here presented. We are asked here to go further than did Mr. Justice Galen in his dissenting opinion in that case.
In the case of People v. Brehm, 218 A.D. 266,218 N Y Supp. 469, the court held that, where a physician had testified that the hymen of prosecutrix had been ruptured, but that he was unable to say when it had been done, it was *Page 574 error to refuse permission to cross-examine prosecutrix as to illicit relations with other men. But here the offered proof would not have established that she had had intercourse with John Broberg. It would simply have shown that she made such a statement. Her oral declaration to that effect was not competent for that purpose. (State v. Haynes, 116 Or. 635,242 P. 603; State v. Rogers, (Idaho) 283 P. 44.)
While we are aware that an accusation of this kind is easily made and hard to disprove, and that great liberality should be allowed in the cross-examination of prosecutrix, we cannot say that the court erred in excluding the offered testimony, and in denying the right to cross-examine prosecutrix concerning the statement purported to have been made by her, under the circumstances here disclosed.
Defendant also assigns error in permitting the state to show that he had intercourse with prosecutrix previous to the date alleged and about three months before she left Minneapolis. Contention is made that this evidence was not admissible, because the proper foundation as to time and place had not been laid, and that the act was too remote in point of time. This evidence was properly admitted for the purpose of corroboration (State v.Peres, 27 Mont. 358, 71 P. 162; State v. Vinn, 50 Mont. 27,144 P. 773; State v. Harris, 51 Mont. 496, 154 P. 198), and is not open to the objections contended for.
Mr. Wigmore, in his work on Evidence (vol. 1, 2d ed., sec. 399), in discussing this question, says: "The limits of time over which the evidence may range must depend largely on the circumstances of each case, and should be left to the discretion of the trial court." (See generally, on this subject: State v.Wichers, 149 La. 643, 89 So. 883; State v. Morgan,146 Wash. 109, 261 P. 777; State v. Sysinger, 25 S.D. 110, Ann. Cas. 1912B, 997, 125 N.W. 879; State v. Stone, 74 Kan. 189,85 P. 808.) The court did not abuse its discretion in admitting evidence of the prior act of the parties under the circumstances here presented. *Page 575
Defendant contends that the court erred in refusing to give the following instruction tendered by the defendant: "You are instructed that if you find from the evidence that the complaining witness, Ivy Paddock, failed to make prompt complaint of the rape alleged to have been committed upon her, such failure, if not satisfactorily explained, is a circumstance to be considered by you in determining the weight to be given her testimony, and in determining the weight and credibility of her testimony, you should consider such failure to make complaint in connection with all facts and circumstances proved during the trial."
Whatever the rule may be elsewhere, in this state "the rule which requires a prosecutrix raped by force to make immediate outcry or disclosure, or stand discredited on the trial, has no application to a prosecution for the rape of a female under the age of consent." (State v. Peres, supra.) It was not error to refuse this offered instruction. (People v. Fraysier, 36 Cal. App. 579,172 P. 1126; State v. Bowman, 278 Mo. 492,213 S.W. 64.)
Error is also predicated upon the court's action in overruling objection to a question propounded to Dr. Danskin, designed to elicit the result of his examination of prosecutrix. The court did not err in overruling the objection.
While the record in this case leaves doubt in our minds as to the truth of some of the statements of the prosecutrix, we are not warranted in overturning the verdict of the jury, based upon sharply conflicting evidence, or interfering with the action of the lower court in denying the motion for a new trial.
The judgment is affirmed.
ASSOCIATE JUSTICES MATTHEWS and FORD concur.