The indictment in this case contained two counts, one alleging rape of Emma Moser, a woman, by means of force, threats and fraud; the other charging an assault with intent to commit rape upon Emma Moser, a woman, by force, threats and fraud. The mother of prosecutrix testified that her daughter had been in good health up to the time of the alleged assault, but had been in bad health continuously since same. Prosecutrix herself testified that the act of intercourse with appellant, upon which the charge in this case is predicated, caused her great pain and suffering, — that it was the first time she had ever had intercourse with a man. Where the physical condition of prosecutrix is relied upon as corroborative of her claim that she was assaulted by the accused, or when such testimony tends to solve any other issue in the case, it is permissible to prove acts of intercourse with other persons prior *Page 682 to the date of the commission of the offense under investigation. Appellant offered to prove by many witnesses acts of intercourse on the part of prosecutrix prior to the act here relied upon with appellant, which proof was rejected. In view of the reliance had by the state upon the physical condition of prosecutrix after the occurrence, as testified to by her mother, and in view of her further testimony that the act caused her great physical pain and suffering, it would seem permissible under the authorities cited by Mr. Branch under Sec. 1787 of his Annotated P. C., as well as the authorities cited in the original petition, to admit proof of such prior acts on the part of the prosecutrix.
While one who is unchaste may be ravished, and is entitled to the protection of the law against one who assaults her, still where testimony of facts such as above referred to has apparently probative force bearing upon contested issues, the courts will permit such testimony.
The state's motion for rehearing will be overruled.
Overruled.
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