On Petition for Rehearing.
In the original opinion we overlooked one point that is worthy of attention: The victim of the criminal assault was asked upon cross-examination whether he had not had similar relations with others, for the purpose of discrediting his testimony. An objection to the question was sustained, which is assigned as error. The evidence may be competent, (Jones on Ev., § 830, Wigmore on Ev, §§ 977 to 996), but if so its admission was within the discretion of the court. Id. See also Union Gold Mining Co. v. R. M. Nat’l Bank, 1 Colo. 531, 549. The ruling on such questions is not subject to review. Johnson v. Jones, 1 Black (U. S.) 209, 17 L. Ed. 117. See also State v. McCarthy, 17 Minn. 76; Merrill v. Perkins, 59 N. H. 343; Noblin v. State, 100 Ala. 13, 14 South. 767; Tobias & Co. v. Treist & Co., 103 Ala. 664, 15 South. 914; 40 Cyc. 2570, and cases cited.
The defense attempted to prove the same fact by the witness Phillips, but the authorities are practically unanimous that such evidence is not competent. Wigmore on Ev. § 987.
Rehearing denied.