I am not in accord with the basis upon which the decision of this case is founded, and think the judgment should be reversed and the appellant granted a new trial unless this court concludes that State v. Acklus, 126 Wash. 65, 217 P. 61, should be overruled.
It is a well-established rule in this state that, unless an objection made to testimony of a witness is sufficiently definite to call the attention of the trial court to the particular ground upon which it is based, error cannot be predicated thereon.Urquhart v. Coss, 60 Wash. 249, 110 P. 1001; State v.Spangler, 92 Wash. 636, 159 P. 810; Murray v. Seattle,96 Wash. 646, 165 P. 895.
The reason for this rule is that the court should be apprised of the nature of the objection made to proffered testimony and the basis therefor so as to enable the court to pass intelligently upon the question raised. But if it *Page 57 appears that the court understood the nature of the objection made, even though it might not have been couched in language which would have been made clearer upon further reflection, and made its ruling accordingly, then such ruling is open to review on appeal.
It seems to me quite plain from what is set forth in the majority opinion that the trial court understood the objection made was that the physician should not have been permitted to have stated his opinion, or conclusion, that the prosecuting witness had been subjected to sexual intercourse, but that this was a conclusion for the jury to draw when the condition of the person of the prosecuting witness was portrayed by him. The counsel who represented the appellant at the trial should have requested the court to allow him a reasonable time within which to find the citation to the case he referred to; but this failure on his part should not now deny the appellant the protection accorded by the rule of law announced by that case.
The question involved was a crucial one and bore directly on the guilt of the appellant, and an erroneous ruling thereon would be highly prejudicial to him. In view of the record before us, it might be said with much persuasion that the appellant was, without any question, guilty of the offense with which he was charged, and the testimony of the physician, even though erroneously received, was without prejudice, and now to hold, as stated in the majority opinion, prejudicial error was committed, would be a travesty on the administration of justice. But, while it is true that instances might be cited where guilty persons have been awarded new trials and even have escaped just punishment because of the operation of some rule of law or evidence, nevertheless we must not overlook the fact that, in the trial of every person accused of a public offense, he is accorded certain constitutional and statutory rights, among which is that his conviction must be based upon legal evidence.
The Acklus case directly decides that a physician who makes a physical examination of a female cannot testify *Page 58 that, in his opinion, she has had sexual intercourse. This is based upon the reasoning that such fact is a substantive part of the offense with which the accused is charged and is a conclusion for the jury to reach upon the whole evidence submitted in the case. Under the authority of that case, the court committed prejudicial error in permitting the proffered testimony, and it should either be overruled or a new trial granted to the appellant.
March 14, 1944. Petition for rehearing denied.