(dissenting). The foregoing opinion does not meet with my approval, for two reasons: First, I do not believe the opinion is correct when it states that the cross-examination relative to the girl’s unchastity and immoral character was admissible as affecting her credibility as a witness; second, I believe under the facts in this case that such testimony was not material to any issue on trial, and therefore not admissible upon that ground. Defendant stands convicted of the crime of rape upon a girl under the age of consent. Our statute makes it a crime to carnally know a female under the age of sixteen, whether she has been of previous chaste character or not. The prosecutrix was a witness for the state, and upon cross-examination was asked regarding specific illicit acts of sexual indulgence, and whether or not at a period some thirteen months prior to the alleged offense she had for three weeks been an inmate of a house of prostitution. Upon this question being excluded, and at various other times through the trial, defendant offered the said proof as a matter of defense. This offer was denied, and the appeal raises the two questions; namely, first, was such question proper cross-examination as affecting the credibility of the witness; and, second, was such evidence material to the issues on trial, so that it might be admitted in proof as a matter of defense whether the prosecutrix had been a witness or not ?
As stated in the majority opinion, the defendant presented his offer of such question upon five grounds. However, the first ground relates to the credibility of the witness, and the other four to the relevancy of the testimony, so there are in effect but two questions involved. It is important, however, to keep in mind the distinction between the offers as affecting the credibility of the witness, and the other four offers which are based upon the theory that the evidence is material. For, if the evidence is admissible upon the first theory, the question *324may be asked of tbe prosecutrix alone, and her answer is conclusive; while, if asked upon the second theory, that it is material to some issue involved in the trial, the answer of the girl is not conclusive, but other witnesses may be called to testify to the matter even though the prosecutrix herself were not a witness in the case. This distinction is important in cases wherein the prosecutrix does not take the witness stand, which situation in cases of statutory rape is not only possible, but altogether likely. In the case at bar the distinction will become apparent if upon a new trial, the prosecutrix, as is altogether probable, states that she was not such inmate, and the defendant offers other evidence to contradict her. If the evidence is admissible solely as affecting her credibility, such contradictory evidence will not be admissible. Also, it is possible that the prosecutrix in this case might die, become insane, or leave the jurisdiction of the court before the next trial, and the state should proceed to trial, either without her testimony, or by using that given at the last trial. I emphasize this distinction, because I believe that it is the failure to observe it that has confused the majority of this court. After reading practically every case upon the subject contained in our library, I have reached the conclusion that there is no case in the United States directly holding that the evidence of a girls unchastity is admissible upon the theory that it affects her credibility alone; the nearest to such a holding being the Connecticut case to which I shall refer later, — while practically every other court that has touched upon the subject holds to the contrary. The defendant in his brief, and this court in the majority opinion, state that the strongest reason for the admissibility of the testimony in this case is that it affects the credibility of the witness Lillian, and as such was proper cross-examination. I therefore feel justified in taking a little time to review the authorities cited in the majority opinion. The first case and the principal one upon which they rely for such holding is State v. Kent (State v. Pancoast) 5 N. D. 516, 35 L.R.A. 518, 61 N. W. 1052. The syllabus in that case has misled many a lawyer and some trial judges, as well as text writers. The Kent Case when carefully read is exactly contrary to the holding of the majority of this court in the case at bar. Mr. Kent was cross-examined regarding transactions had by him some twenty years previous with an Ohio bank. It was claimed that such testimony was admissible upon two grounds: *325First, to affect the credibility of the witness; and, second, upon the theory that such evidence was material to the issues on trial. In this respect it was similar to the case at bar. This court approved the questions upon the theory that they were material, and expressly excluded them upon the ground that they affected the credibility of the witness. I quote from the opinion in such case at page 551: “Having held that this cross-examination was proper for the purpose of showing motive, we might here leave this branch of the case, but the question of the propriety of such examination as affecting the credibility of the witness is squarely upon the record. . . . We shall therefore proceed to state without elaboration our views upon the point . . (page 556), but there are reasons why we think this cross-examination improper as affecting the credibility of the witness.” Then follow several pages of reasons, and at page 558: “But, as this evidence was all properly admitted for the purpose of showing motive, it is elementary that the judgment cannot be disturbed because it was inadmissible for another purpose.” It is thus perfectly plain that the Kent Case is not an authority for the admission of this evidence as affecting the girl’s credibility. The Kent Case in this respect is a great deal like most of the cases cited in the majority opinion. The apparent conflict of authorities mentioned in the opinion is readily explained when the cases are carefully read with the above distinction in mind. Take the state of New York, for instance. There is no conflict in the decisions of that court. The case of Woods v. People, 55 N. Y. 515, 11 Am. Rep. 309, which is cited in the majority opinion as an authority for the admission of the testimony as affecting the credibility of the witness, is not a holding upon that proposition at all. I quote from the opinion in that case: The evidence is received upon the issue “whether he ravished her hy force, or whether she assented to such intercourse. . . . The evidence is received upon this ground, and not for the purpose of impeaching the general credibility of the witness.” The same is true of the other New York ease cited, People v. Abbot, 19 Wend. 191, from which also I quote: “In such a case the material issue is on the willingness or reluctance of the prosecutrix, . . . any fact tending to the inference that there was not the utmost reluctance, and the utmost resistance is always received.” The same explanation is to be made in the California cases. The case of People v. Benson, *3266 Cal. 222, 65 Am. Dee. 506, which is cited in the majority opinion as supporting the admission of similar testimony to affect the credibility of the witness, does not in any manner support the opinion. The evidence in that case was not admitted to affect the credibility of the witness, but “as tending’ to disprove the allegation of force and total absence of resistance on her part.” It happened that the prosecutrix was a child of thirteen years, but California at that time (1856) had only the common law or force rape, and the indictment had to allege and did allege that force was used. The same condition obtained in the case of People v. Shea, 125 Cal. 151, 57 Pac. 885, which merely follows the Benson Case. The credibility of the witness was not mentioned, but they quote':' “This class of evidence is admissible for the purpose of tending to show the improbability of resistance upon the part of the prosecutrix.”
It is true that at 33 Oye. pp. 1481, 1482, note 83, a single clause of a sentence may be extracted which says that the want of chastity may be shown as affecting the credibility of the prosecutrix, but by reading the cases cited in note 83 in said volume of Cyc., and in the 1913 Cyc. Ann. thereto, we find the cases all to the effect as hereinafter stated. I have taken the trouble to digest the seven cases cited in the said Cyc. text with the following result:
State v. Duffey, 128 Mo. 549, 31 S. W. 98. In this case there is such a statement used in the opinion, but it was not in any manner material in the case, and was the merest dictum.
State v. Rivers, 82 Conn. 454, 34 Atl. 757. This case comes the nearest to supporting the text of any in the United States. However, they state that the acts of unchastity may be inquired into if they tend to show that the witness was unreliable, but “the extent of such inquiries is, however, largely a matter of discretion, and their exclusion by the trial court in the exercise of that discretion is rarely considered a sufficient ground for granting a new trial.”
Shoemaker v. State, 58 Tex. Crim. Rep. 518, 126 S. W. 887. In this case it was claimed that the prosecutrix had threatened the arrest of the defendant when she was caught in a compromising position with another man. The evidence was not offered to affect her general credibility, but to show her bias as a witness, and the act of unchastity shown went merely to show the occasion of the threat.
*327Parker v. State, 62 Tex. Crim. Rep. 64, 136 S. W. 453. In this ease the prosecutrix had given birth to a child about nine months after the alleged rape. The court held that it was material to show intercourse with other men at about the time of the conception of the child, as it tended to explain this corroborating circumstance.
Wade v. State, — Tex. Crim. Rep. —, 144 S. W. 246. In this case the defendant moved for a continuance upon the ground that at the next term of court he could produce a witness who would testify to the bad character of the prosecutrix. The court held that this was not grounds for a continuance.
State v. Workman, 66 Wash. 292, 119 Pac. 751. In this case the ruling was under the Washington statute which makes it a crime to carnally know a girl under sixteen years of age, if she has been of previous chaste character. Of course under such a statute the chastity of the girl would be a material issue on the trial.
Richardson v. State, 100 Miss. 514, 56 So. 454. In this case the state had proven that the hymen of the prosecutrix had been ruptured. It was held material to show that the rupture might have been caused by other intercourse. It will thus be seen that what the majority opinion calls “citing perhaps hundreds of cases” has dwindled down to practically the Connecticut case alone. On the other hand, the opinions cited as contrary are squarely to the point, and stand for the exclusion of the testimony, unless it'is material to some issue on trial. In the case of Marshall v. Territory, 2 Okla. Crim. Rep. 136, 101 Pac. 139, the court has gone into the matter very fully. I would advise any person seeking light upon this interesting question to read the resume of the cases found therein. Next taking up the case of Walker v. State, 8 Okla. Crim. Rep. 125, 126 Pac. 829, and the case of People v. West, 106 Cal. 89, 39 Pac. 207, the correct side of the question is pretty lucidly presented. See also Plunkett v. State, 72 Ark. 409, 82 S. W. 845 ; People v. Abbott, 97 Mich. 486, 37 Am. St. Rep. 360, 56 N. W. 862 ; State v. Gleim, 17 Mont. 17, 31 L.R.A. 294, 52 Am. St. Rep. 655, 41 Pac. 998, 10 Am. Crim. Rep. 46 ; State v. Roderick, 14 L.R.A. (N.S.) 704, and especially the note at page 723. See also cases cited at 697 to 706, note 14 L.R.A. (N.S.)
In the ease of People v. Glover, 71 Mich. 303, 38 N. W. 874, the following language is used: “The defendant offered to introduce tes*328timony showing that the reputation . . . [of the prosecutrix] for chastity was bad. . . . The defendant also offered testimony showing specific acts of lewdness on the part of . . . [the prosecutrix]. . . . This testimony, on motion of the prosecuting attorney, was excluded. . . . Error is alleged upon the refusal of the court to allow defendant to show that the reputation of the girl for chastity was bad. The good or bad character of the girl for chastity was not in issue. The prosecution was had under the statute of 1887, which fixes the age of consent at fourteen years; and, the girl being too young to consent to the intercourse, it would be no answer that she had a bad reputation for chastity.” In the case of People v. Johnson, 106 Cal. 289, 39 Pac. 622, “the defendant offered to prove the general reputation of the prosecutrix for unchastity. . . . The present case is an exception to the general rule. The prosecuting witness is under the age of consent, and for this reason evidence either of general reputation or specific acts would seem to be immaterial. This class of evidence is admissible for the purpose of tending to show the nonprobability of resistance upon the part of the prosecutrix. ... In other words, this class of evidence goes to the question of consent only, and in a case like the present the question of consent is not involved. . If this class of evidence was admissible as going to the credibility of the testimony of the prosecutrix in its entirety, then it would be equally admissible as against the veracity of any female who might be called upon to give evidence in a case. Yet no such principle is recognized anywhere.”
In the case of Hall v. State, 43 Tex. Crim. Rep. 479, 66 S. W. 783, it is said: “It is not permissible to impeach any witness for truth and veracity by showing that his or her reputation for chastity is not good. ...”
In the case of Plunkett v. State, 72 Ark. 409, 82 S. W. 845, it is said: “The character of the prosecutrix for chastity is not involved in a charge of this kind, as in cases of seduction. The only question in a charge of this kind is whether appellant had sexual intercourse with the prosecutrix. The et tu defense does not obtain. The prosecutrix on cross-examination testified broadly that she had never had sexual intercourse with anyone except appellant; and appellant contends that he should have been permitted to show that she had sexual intercourse *329with another, to contradict and impeach her. But here, again, such impeachment would have been upon an immaterial point, which is not allowed when brought out for the first time upon cross-examination.”
In People v. Abbott, 97 Mich. 484, 37 Am. St. Rep. 360, 56 N. W. 862, it is said: “The offense is in unlawfully and carnally knowing a female child under the age of fourteen years, and it is no less an offense within the terms of the statute if the child has had intercourse with other men prior to that time. The court was not in error in excluding the evidence. But though the court did exclude at the time it was first offered, evidence of this character, it was afterwards admitted, and respondent’s counsel drew from the girl the fact that at other times prior to the alleged offense she had had intercourse with several other men. The court admitted this testimony on the claim of counsel for respondent that it was competent as bearing upon the girl’s credibility. It was not competent in this case even for that purpose. If the girl had been of the age of consent, it might be competent to admit evidence of her general reputation for chastity as bearing upon the probability of her story. . . . But here the law conclusively presumes that the girl could not give her consent. . . . Her reputation for truth and veracity could be inquired into, the same as of an adult, but she could not be impeached by her acts of intercourse.” In the case of State v. Gleim, 17 Mont. 17, 31 L.R.A. 294, 52 Am. St. Rep. 655, 41 Pac. 998, 10 Am. Crim. Rep. 46, it is said: “Upon the trial the counsel for the state on the cross-examination of the appellant propounded a great many questions calculated to degrade the defendant before the jury. The inquiry took a wide and varied range. She was asked if she had not rented houses for purposes of prostitution at various places in Montana; whether she had not been ‘a kind of a backer for the prostitution of female persons in Missoula and Hamilton;’ whether she had not had a fight with a priest; whether she had not hugged and kissed a juryman after she had been found not guilty of some misdemeanor upon one occasion; whether she had not had a fight with a French prostitute at some time, etc. We cannot conceive upon what theory of the law this line of testimony was allowed. It was not cross-examination of what appears by the record to have been the appellant’s evidence in chief, nor did it legitimately tend to impair the credibility of the defendant as a witness. Its effect must have *330been highly injurious and prejudicial to the defendant in the minds of the jury. . . . Such an examination we most earnestly disapprove of. It was oppressive and unjust no matter how wicked or degraded the defendant may have been by common report.”
In State v. Whitesell, 142 Mo. 467, 44 S. W. 332, it is said: “As evidence of unchastity on the part of prosecutrix goes to the question of consent, it is immaterial in a prosecution for having carnal knowledge of a girl under the age of consent, for in such a case want of consent to the act is not essential.”
In Walker v. State, 8 Okla. Crim. Rep. 125, 126 Pac. 829, it is said: “In the form the question was asked the evident purpose was to show a lack of chastity, and thus impeach the prosecutrix. Evidence tending to show a lack of chastity on the part of the prosecutrix is only admissible to raise the presumption of consent, and, this being a case of statutory rape, that issue was not in the case.”
In State v. Ogden, 39 Or. 195, 65 Pac. 449, it is said: “The rule is well settled that on the trial of a party charged with the commission of rape it is competent for him to impugn the virtue of the prosecutrix if she is of statutory age, not with a view of jirstifying or even excusing his conduct, but for the purpose of showing that her general reputation for chastity is bad, thereby creating a presumption that the act of which she complains was consummated with her consent, and not by force. ... If the prosecutrix has attained the legal age . . . her character may be challenged, for the same reason, by inquiring of her on cross-examination whether she has ever had illicit sexual intercourse with the accused at any time prior to the act. . . . Evidence of such previous connection being admissible to give rise to a presumption that she consented to the act in question. ... In those respects the lawr is uniform.”
In the case of Peters v. State, 103 Ark. 119, 146 S. W. 491 (year 1912), it is said: “If . . . the defendant had offered to show that such statements were false, it would involve for the determination of the jury another and entirely different issue.”
In State v. Hilberg, 22 Utah, 27, 61 Pac. 215, it is said: “The prosecutrix was under the age of consent. Sexual intercourse with her constituted an offense under the statute, whether she consented or not. Her good or bad character for chastity, as affecting the crime charged *331against the defendant was not in issue, although her general reputation for truth and veracity was. The testimony offered was incompetent. So, specific acts of unchastity on the part of the young woman were not admissible.”
In the case of State v. Eberline, 47 Kan. 155, 27 Pac. 839, it is said: “It is insisted that it was competent for the defendant to prove the general reputation of the prosecutrix for chastity and virtue, not as a justification or an excuse for the crime, but for the purpose of affecting her evidence. We do not so understand the rule. While evidence of a witness’s bad character for.veracity is admissible, inquiry in such a ease as this must be confined to the witness’s character for truth and veracity.”
In the case of State v. Rash, 27 S. D. 185, 130 N. W. 91, Ann. Cas. 1913 D, 656, we quote: “It is further contended by the appellant that the court erred in not permitting him to prove, as discrediting the testimony of the medical experts, or as rebutting the same, that the said Edna Roberts had been an inmate of a house of ill fame. . . . We are of the opinion that the evidence offered . . . was properly excluded.”
In State v. Blackburn, — Iowa, —, 110 N. W. 275, it is said: “It appears from the record that the question was treated by the court as calling for the character of the prosecutrix, including her character for chastity as known to the witness. ... It seems to us, therefore, that there was no prejudicial error in sustaining the objection to the question.”
In the case of State v. Hobgood, 46 La. Ann. 855, 15 So. 406, it is said: “It is inadmissible, in order to attack veracity, to prove the bad character of the female witness for chastity, or to show that she is a prostitute.”
In the case of Birmingham Union R. Co. v. Hale, 90 Ala. 8, 24 Am. St. Rep. 748, 8 So. 142, 2 Am. Neg. Cas. 52, it is said: “Notwithstanding such extension of the rule, immoral conduct in any one particular, however it may bear on the question of general character, cannot be put in evidence for this purpose. By a notorious want of chastity, a female will certainly obtain a bad character, and her general reputation, if she has acquired any, may be given in evidence to impeach her; but not the particular and independent fact that she is a *332prostitute, or keeps a house of ill fame, — the cause producing her bad character cannot be inquired into.”
In People v. Chin Hane, 108 Cal. 597, 41 Pac. 697, it is said':' “The witness Ah Wah testified that she was the wife of the deceased. . . . The defense attempted to prove that she had been an inmate of a house of prostitution. The evidence was inadmissible. Such matters are entirely collateral, and her veracity could not be impeached in that way.”
In the case of Jackson ex dem. Boyd v. Lewis, 13 Johns. 504, it is said: “There can be no doubt that the evidence offered to impeach the character of Catherine Bassett was inadmissible. It would not be competent to prove that she was now a public prostitute, and much less to inquire whether she was so in her younger days; the inquiry should have been as to her character for truth and veracity.”
In Com. v. Churchill, 11 Met. 538, 45 Am. Dec. 229, it is said: “This ease presents the direct question whether evidence is admissible to impeach the credibility of a female witness, which tends to show that she is, and for sometime has been, a common prostitute. . . . The only reported case in which it has been held that such evidence is admissible is Com. v. Murphy, 14 Mass. 388. It was a decision made in the course of a capital trial, and probably without much time for deliberation or reference to authorities. . . . We consider it as a deviation from the established rule of the common law on the subject. It has been regarded by judges of this commonwealth with disapprobation, and has not been adopted by the courts of other states. . . . It is not required by any strong considerations of fitness or expediency, and cannot be regarded as having acquired the force of a settled rule of law. We are, therefore, of opinion that the decision of the judge in rejecting the evidence was correct.”
In the case of State v. Fournier, 68 Vt. 262, 35 Atl. 178, it is said: “For the purpose of impeaching the state witnesses . . . the respondent offered to show that prior to their marriage Fanny kept a house of ill fame, the witness Howe lived in it, knew its character, and acted in its behalf; that subsequently Fanny was held to bail upon a charge of keeping the house, forfeited her bonds, and paid them. This offer was for the purpose of a general impeachment of the witnesses. The test of impeachment is, What is the character or general reputation of the witness for truth and veracity ? and this rule has been universally *333adhered to in this state. It has been held incompetent upon that question to show that a witness was a common prostitute.”
In Morse v. Pineo, 4 Vt. 281, it is said: “There is no way to ascertain how far the reputation of a prostitute affects her truth, but by proving her character for truth.”
See also interesting note with cases cited at page 481 of volume 53 Am. St. Kep., from which I quote: “Under the rule that no particular act of immorality is sufficient to impeach the credibility of a witness, it has been held in many cases that testimony to show that the witness either was or had been a common prostitute is inadmissible for the purpose of impeaching her credibility.”
At 14 L.R.A.(N.S.) 723, the text writer says':' “The foregoing discussion has abundantly shown that in trials for the common-law crime of rape the character for chastity of the alleged victim is material solely for its bearing upon the question whether force against her utmost resistance was used to deflower her, or whether she consented to- the accomplishment of the lustful purpose.
“In the case of statutory rape, consent is no element in the crime; the victim by reason of her tender years is legally incapable of consenting to her defilement. The question of her chastity is therefore entirely immaterial, and the courts are virtually unanimous in excluding all evidence relating to it.” Citing the -cases above mentioned and State v. Anthony, 6 Idaho, 386, 55 Pac. 884 ; State v. Blackburn, — Iowa, —, 110 N. W. 275 ; People v. Glover, 71 Mich. 303, 38 N. W. 874 ; State v. Whitesell, 142 Mo. 467, 44 S. W. 332 ; State v. Hilberg, 22 Utah, 27, 61 Pac. 215. Those opinions give the reasons for the holding that the matter is collateral; 'that the jury should not be diverted from the main issue to try the subordinate' one, as the girl seldom or never will admit prostitution; that it is manifestly unfair to propound such a question to a witness, especially one of tender years, when it is always or nearly always impossible to refute the imputation which the question carries; that while it is easy to say that a prostitute is not entitled to belief, it must be remembered, however, that prostitutes seldom have men arrested for rape, and that practically all of the questions will be asked of respectable girls: It is hard enough now to get young girls who have been debauched to testify against their betrayers, and police matrons and rescue workers generally assert that for each *334girl who makes complaint there are many hundreds who bear their wrongs in silence, rather than submit to the publicity their complaint would bring upon them. But if this rule is allowed to stand, it means not only the prosecutrix in rape cases, but every witness of every kind, in civil cases, as well as criminal, may be asked this disgraceful question for the sole purpose of testing her credibility, and such evidence must be received, regardless of the discretion of. the trial court who may want to protect her.
In addition to the cases cited the following are more or less in point, and sustain this holding:
State v. Eberline, 47 Kan. 155, 27 Pac. 839 ; Peters v. State, 103 Ark. 119, 146 S. W. 491 ; State v. Rush, 27 S. D. 185, 130 N. W. 91, Ann. Cas. 1913D, 656 ; Stayton v. State, 32 Tex. Crim. Rep. 33, 22 S. W. 38 ; McCray v. State, 38 Tex. Crim. Rep. 609, 44 S. W. 170 ; Woodward v. State, 42 Tex. Crim. Rep. 188, 58 S. W. 144 ; McAfee v. State, 17 Tex. App. 139 ; Conway v. State, 33 Tex. Crim. Rep. 327, 26 S. W. 401 ; Lancaster v. State, 36 Tex. Crim. Rep. 16, 35 S. W. 165 ; Butler v. State, 34 Ark. 480 ; Strang v. People, 24 Mich. 6 ; People v. Un Dong, 106 Cal. 83, 39 Pac. 12 ; People v. Glover, 71 Mich. 303, 38 N. W. 874 ; People v. Abbott, 97 Mich. 484, 37 Am. St. Rep. 360, 56 N. W. 862 ; Boddie v. State, 52 Ala. 395 ; McQuirk v. State, 84 Ala. 435, 5 Am. St. Rep. 381, 4 So. 775 ; Shartzer v. State, 63 Md. 149, 52 Am. Rep. 501 ; Pleasant v. State, 15 Ark. 624 ; Wilson v. State, 16 Ind. 392 ; State v. Jefferson, 28 N. C. (6 Ired. L.) 305 ; State v. Ward, 73 Iowa, 532, 35 N. W. 617 ; Camp v. State, 3 Ga. 417 ; Com. v. Regan, 105 Mass. 593 ; Com. v. Harris, 131 Mass. 336 ; People v. McLean, 71 Mich. 309, 15 Am. St. Rep. 263, 38 N. W. 917 ; State v. White, 35 Mo. 500 ; State v. Forshner, 43 N. H. 89, 80 Am. Dec. 132 ; State v. Knapp, 45 N. H. 148 ; State v. Campbell, 20 Nev. 122, 17 Pac. 620 ; McCombs v. State, 8 Ohio St. 643 ; Pefferling v. State, 40 Tex. 486 ; Dorsey v. State, 1 Tex. App. 33 ; Rogers v. State, 1 Tex. App. 187 ; Jenkins v. State, 1 Tex. App. 346 ; Mayo v. State, 7 Tex. App. 342 ; Lawson v. State, 17 Tex. App. 299 ; Fry v. Com. 82 Va. 334 ; Adams v. State, 93 Ark., 260, 137 Am. St. Rep. 87, 124 S. W. 766 ; McArthur v. State, 59 Ark. 431, 27 S. W. 628 ; O’Beenis v. State, 47 N. J. L. 279 ; State v. Froelick, 70 Iowa, 213, 30 N. W. 487 ; State v. Egan, 59 Iowa, *335636, 13 N. W. 730 ; State v. Haupt, 126 Iowa, 152, 101 N. W. 739 ; State v. Seevers, 108 Iowa, 738, 78 N. W. 705 ; Kilburn v. Mullen, 22 Iowa, 498 ; State v. Smith, 18 S. D. 341, 100 N. W. 740 ; 1 McClain, Crim. Law, § 460 ; 1 Wharton, Ev. § 599 ; 3 Am. & Eng. Enc. Law, 117, and cases cited; 1 Greenl. Ev. § 463 ; Underhill, Crim. Ev. § 418; State v. Jackson, 44 La. Ann. 160, 10 So. 600 ; Re James, 124 Cal. 653, 57 Pac. 578, 1008 ; Moore v. State, 68 Ala. 360 ; Gifford v. People, 87 Ill. 211 ; Cunningham v. State, 65 Ind. 377 ; Bessette v. State, 101 Ind. 85 ; State v. Barrett, 40 Minn. 65, 41 N. W. 459 ; Holbrook v. Dow, 12 Gray, 357.
In the case at bar, we can apply the most radical rule in the United States, namely, the one announced in the Connecticut case, that the trial court has a wide discretion in the admission of such testimony, and his discretion should not be disturbed except for abuse. Under this holding this court should not reverse this case. Let us review the facts briefly.
The girl’s mother had died when she was an infant. Her father had abandoned her to an orphan asylum, from which she had been taken by a woman who later wrote the'letter regarding her which was in the possession of the trial court. When taken to the state of Washington by this family, she was a mere child, and was between twelve and thirteen at the time that defendant claimed she had been an inmate of a house of prostitution. The girl on her direct examination had positively sworn that she had had sexual intercourse with but one other man in her lifetime, which was virtually an answer to the question sought to be asked of her. If asked for the sole purpose of affecting her credibility, her answer was conclusive, and could not be contradicted, as she had already denied the accusation, in effect. I cannot see the error in the exclusion of the question. The trial court had before it the letter written by the chief of police of the town of Walla Walla, Washington, relative to this girl, as well as the letters from the foster mother and the matron of the Salvation Army there. Those letters were the principal basis of defendant’s claim of good faith in asking the said questions. I will quote briefly from the letter from the chief of police: “Speaking plainly I will say that your daughter’s conduct and the manner in which she conducted herself prior to the time of her arrest was not of the best, in fact she was thought to be *336without a home or anyone to look after her, and for that reason she was picked up by the police, and the matter brought to the attention of the prosecuting attorney, who, after looking into the matter, decided that she should be sent to the reform school, but the police matron brought her influence to bear and the Salvation Army stepped in and agreed to provide her with a home. . . . ” The woman at whose home the girl was staying writes as follows: “Regarding your daughter Lillian, my sister took her to raise, . . . she came to visit me this summer and brought her with her and left her with me. . . . She is a little hard to manage, and I think it proper for her father to take charge of her. . . . She is a bright, smart girl . . . she was always nice when here, but we could not trust her out of sight, and were just as anxious about her as if she had been our own flesh and blood, until she ran away and was put in jail.” Under these circumstances we think it was a case where the trial court should be allowed to say whether the questions were asked more to humiliate and embarrass the witness than to legitimately affect her credibility. To be sure the letters do not reflect any great credit upon the girl, and in a measure at least justified the defendant in his offer, but the said letters do not go to the extent of claiming that the girl had ever been an inmate of a house of prostitution. Also the trial court considered the evidence of Dr. Savage, that she appeared to be unused to sexual intercourse. As the trial court has exercised his discretion for the exclusion of the question, I think that his judgment should be respected.
So far in this discourse I have confined my remarks on the admissibility of the testimony as to the girl’s prior chastity to the sole purpose of affecting her credibility.- I am satisfied that any person who will take the time to read all of the cases that I have mentioned will reach the conclusion that I have reached; namely, that such evidence should not be admitted for the purpose alone of impeachment, and that the cases of the country, with the possible exception of the Connecticut case, are unanimously in accord with this statement. Thus in the case at bar, the witness could not be asked whether or not she had been an inmate of a house of ill fame unless that fact was material to the issues on trial. It is in the discussion of this feature of the cases that the cases cited by the majority opinion became relevant. I *337will agree that the great weight of authority favors the admission of any fact, no matter how distasteful to the girl, that tends to show the guilt or innocence of the defendant. Even a prostitute has the protection of the law to protect her person, and it is no defense to the charge of rape to say that the girl was unchaste. If the testimony becomes material for any of the reasons which will be hereafter discussed, the defendant may prove her unchastity as a matter of defense not only by cross-examination of the prosecutrix, but by the testimony of other witnesses. In all cases of rape, where it is claimed that force has been used, such evidence becomes material as showing the probability that the girl did not resist, because it is not likely that a woman who has frequently sold her person for money will resist an attack upon her honor, and it is not likely that a man who could have purchased the embraces of the woman would force her. This is the holding of practically all of the cases that have been cited in the majority opinion, as holding the evidence admissible as affecting the credibility of the girl. However, in this case it must be remembered that the time of an unchastity of the girl must not be too remote. It would not be material, for instance, to show that a married woman who had lived a respectable married life for twenty years, had been a prostitute prior to her marriage. Nor would it be material that the girl had become a prostitute after the alleged offense, nor would it be material to show acts of sexual intercourse with a single favored lover, as that would raise no presumption that she had consented to the embraces of the defendant, who might be distasteful to her. This fact was emphasized in one case wherein the prosecutrix was a white girl and the defendant a negro, the court saying that the fact that she had yielded her person to the embraces of her lover raised no presumption whatever that she did not resist the defendant, who was colored. Also in those cases where the state seeks to corroborate the testimony of the prosecutrix by showing that she became pregnant or had contracted a venereal disease from which the defendant was known to suffer, or was shown to be suffering from lacerations, the defendant in those cases might show in explanation that the girl with the said disease had been an inmate of a house of prostitution at about the time she contracted the same, and that the pregnant girl had intercourse with other men at about the time of the conception, or that the lacerated girl had *338intercourse with another man at about the time she was lacerated, but it would not be material to show that the girl with fresh lacerations had intercourse thirteen months prior to the alleged offense, nor would it be permissible to show that the pregnant girl had intercourse with a man two years before the conception of the child. Those are matters of the application of common sense to the facts of each particular case on trial. As stated in the majority opinion, in addition to offering the evidence as affecting the credibility of the prosecutrix, the defendant offered such evidence upon matters which he claimed made it material in the cause. The first offer was to explain the testimony of Dr. Savage. I will agree that under certain circumstances this evidence might have been received for this purpose, but in view of the evidence of Dr. Savage itself it was not admissible. The offense is alleged to have occurred about the 1st of July, 1911. The doctor examined the girl about the 13th of July, 1911, some twelve days later, and he testifies that “I found her nervous, and there was a tenderness over the sides of the lips of the vagina. It was sore and raw, and she was lacerated and abrased. ... In my opinion there had been sexual intercourse with the girl who had not been in the habit of having it. . . . In my opinion it was seven to fourteen days before.” The offer to prove that she had been an inmate of a house of prostitution in June, 1910, thirteen months previous, was in no manner an explanation of the- injuries to which the doctor testified. On the contrary, it would seem that they were entirely inconsistent with'such injuries. If the gild were the prostitute that the question seemed to imply, intercourse would not likely have left her raw and lacerated, as the doctor testified that he found her. Such evidence will be more in the nature of a contradiction than an explanation of Dr. Savage’s testimony. The same reasonings apply to the offer of the defendant to show that she had been a prostitute, to contradict her testimony when she said that the defendant had hurt her. Such testimony would not explain in any manner the fact, if it were a fact, that she was hurt. It contradicted it, and it is a well-known principle that the evidence, if received at all, must be admitted for the purpose of explaining some inference of guilt which arises against the defendant, and not in contradicting the evidence. The same reasons apply to the offer of such testimony to explain the conduct of the defendant. *339The testimony was not material for that purpose. The defendant was not on .trial for his general conduct, but for rape. The fact that the girl had been an inmate of a house of prostitution in no manner whatever threw any light upon whether or not she had been carnally known by this defendant, and was entirely immaterial. I have shown, first, that such testimony could not be received as affecting her credibility, unless it was material to some issue on trial in the case; secondly, I have shown, I think, that it was properly excluded by the trial court, and I cannot assent to the majority opinion, which lays down the rule that it not only should be received as affecting the credibility of the girl, whether material or not, but that in this particular case, it was material. However, the merits of this individual case, although important to the parties concerned, are not nearly so important as the announcement of such a vicious rule as this court is about to announce when it says that such a question may be asked, whether it is material or not, and that the trial court has no discretion to exclude it. The evils of such a rule are so many that I have done everything that I can to prevent its enunciation by this court, and file this opinion now as a protest against its adoption.