Opinion on Petition eor a Rehearing.
Davis, J.Wo have carefully considered the petition for a rehearing, the granting of which is earnestly urged by counsel for appellant. In our investigation of the question presented, wo have read the entire record and have closely scrutinized all the evidence. The writer is of the opinion that, ordinarily, in prosecutions for bastardy, where the defendant denies the sexual intercourse, it is competent for the defendant to introduce testimony, if he can, to establish the fact that other men were associating,, or keeping company, with the relatrix at or about the time conception should have taken place. Such evidence may or may not tend to support the theory that she had illicit intercourse with other men. Of course such testimony should he confined within proper limits, and its effect will *599depend on the circumstances in each particular case. The overt act of sexual intercourse on the part of relatrix and another man, is usually difficult, if not impossible, to establish in behalf of the defendant, and such defense, if relied on, must of necessity, as a general rule, be supported by circumstantial evidence. In my opinion, where the attorney for the defendant in such case offers, in' response to a proper question, to prove that, within a few days of the time when conception is claimed by the relatrix to have taken place, she, a young unmarried woman, was keeping company with another man, and proposes, in the same connection, to follow it up with competent evidence tending to show that at such time she had sexual intercourse with such other man, such evidence is competent, and it is error for the court to exclude it. The defendant should not be required, as preliminary to such proof, to say that he would follow it up with evidence showing the overt act of such intercourse. The offer to'introduce evidence tending to support that theory makes it competent. The weight or effect of such evidence when introduced is, of course, for the trial court or jury. In this case the trial was by the court, and a patient and thorough investigation convinces us that if there was any error in the adverse ruling of the court against the defendant, such error, under the facts and circumstances disclosed by the record, was harmless.
Filed May 13, 1893.The writer indorses the original opinion, with the exception of the views herein expressed inconsistent therewith, and, subject to the modification indicated, concurs in overruling the petition for a rehearing.
Petition overruled.