I agree with my associates that in an action to establish the paternity of an illegitimate child the defendant may introduce evidence tending to show that some one other than he is, or may be, the father of such child; and that consequently statements made by the prosecutrix to the effect that she had had sexual intercourse with men other than the defendant within a period of time when the child might have been conceived are admissible as admissions against the prosecutrix. But, when evidence of such admissions is offered, the admissions must themselves be within the rule which permits the defendant to adduce evidence of acts of intercourse by the prosecutrix with other men. The rule, as well as its limitations, is stated in Corpus Juris thus:
"Not for the purpose of impeaching the character of prosecutrix, but as tending to show that some other person than the accused may have begotten the child, evidence of acts of intercourse with others than defendant at a time when in the course of nature the child could have been begotten is admissible, at least when coupled with evidence that defendant had no connection with her during the probable time. Suchevidence must, however, be confined to that period, and acts ofintercourse at other times may not be shown, unless the offer iscoupled with proof either of the premature birth of the child, orof an unusual prolongation of the period of gestation." 7 C.J. pp. 990, 991.
As I construe the record in this case the trial court recognized, and ruled in harmony with, this rule. He did not exclude evidence tending to show that the prosecutrix had made admissions that she had had sexual intercourse with men other than the defendant at such times as to make it probable or possible that one of such other men was the father of the child in question here. It will be noted that in ruling on the motion to strike the testimony of the witness Chase (set forth in the majority opinion) the court said: "All of the testimony of the *Page 84 witness is stricken from the record except such testimony as tothe parties the plaintiff claims were responsible for hercondition."
The court's remarks were directed at the testimony on which the ruling was sought; and it seems to me that the only reasonable construction to be placed upon the court's statement is that he left standing in record as evidence for the jury's consideration the testimony which the witness Chase had given as regards statements which he claimed the prosecutrix had made to him mentioning certain men as possibly being responsible for her pregnancy.
As regards the testimony sought to be elicited from the witness, Spanton, the record discloses that the first question asked this witness regarding alleged statements by the prosecutrix was as follows: "Q. On the trip back was there any question with regard to her condition?" In sustaining an objection to this question, which was interposed by plaintiff's counsel, the trial court said: "In order for counsel to introduce such evidence he must bring the testimony within the reasonable period of gestation." This holding of the trial court is strictly in accord with the rule in Corpus Juris, quoted above. The questions directed to the witness Spanton were not restricted to a period of time during which in the course of nature the child might have been begotten. They referred generally to "the spring of 1929." Under the questions propounded the witness might have testified as to statements made by the plaintiff regarding alleged acts of intercourse with men other than the defendant, — not a single one of which could possibly have resulted in begetting the child in question here. In view of the clear announcement of the views of the trial court indicating that the defendant might introduce evidence of statements made by the prosecutrix concerning acts of intercourse with men other than the defendant at a time which might have resulted in begetting the child, I fail to see how the defendant could have been prejudiced by the rulings of the trial court. Under the rule announced by the trial court, defendant's counsel might, by appropriate questions, have elicited any testimony that the defendant was entitled to introduce as regards admissions by the prosecutrix as to acts of intercourse with men other than the defendant which could or might have resulted in her pregnancy. *Page 85
I am authorized to say that Mr. Justice Burr concurs in the views expressed in this dissent.
BURR, J., concurs in dissent.