The opinion of the court was delivered by
Mason, J.:John Gereke was convicted upon a charge of statutory rape, and appeals. In the course of the impaneling of the jury, and, so far at least as the record shows, before the defendant had exercised any of his peremptory challenges, the court excused a talesman who had been examined only as to his residence, refusing to allow any inquiry as to his qualifications except in that connection. The defendant claims that the evidence failed to show any incompetence on the part of the juror and that it was error for the court to dismiss him. Whether or not the juror on the facts shown was competent to serve, no error was committed of which the defendant can complain, by reason of the rule thus stated in Stout v. Hyatt, 13 Kan. 232:
“It is not a substantial error for the district court to *198discharge a juror during the time the jury are being impaneled, although the juror may be discharged for an insufficient reason, where an unexceptionable jury is afterward obtained and where the party complaining has not exhausted his peremptory challenges.” (Syllabus.)
While this rule may not have been heretofore formally announced by this court except in civil cases, Stout v. Hyatt has been- cited with approval in criminal cases upon the subject of the court’s power to excuse jurors. (See The State v. Miller, 29 Kan. 43; The State v. Sorter, 52 Kan. 531, 34 Pac. 1036.) The rule is a sound one and there is no reason for limiting its operation.
A second complaint is made of the retention of a juror who was challenged by the defendant upon the ground that his name did not appear on the personal-property assessment roll. There was no showing that the juror’s name was not on the real-estate assessment roll. The statute (Gen. Stat. 1901, § 3796) requires the original jury-list to be selected from the “assessment roll” of the preceding year. The expression “the last assessment rolls of the several township and city assessors of the county” (Gen. Stat. 1901, § 1867) has been construed to include both the personal-property and real-estate assessment rolls. (The State, ex rel., v. Comm’rs of Rawlins Co., 44 Kan. 528, 24 Pac. 955.) In The State v. Reed, 53 Kan. 767, 37 Pac. 174, 42 Am. St. Rep. 322, it was strongly intimated that the words “assessment roll,” as used in the jury law, should by the same reasoning be held not to refer exclusively to the personal-property roll but to include the real-estate roll as well. If the question is to be regarded as still open we now decide that to be the true construction of the phrase. It results that the challenged juror was ■ not shown to be incompetent.
The complaining witness testified to the act relied upon for conviction, and in corroboration of this testi*199mony evidence was introduced of the birth of a fully developed child at the expiration of the usual period of gestation. She also testified that she had not had sexual intercourse with any person other than the defendant. Upon cross-examination she was asked whether at about the time she alleged the offense to have béen committed she had not been at various specified places in company with other young men. Later a similar question was asked of another witness. Objections to this line of inquiry were sustained, and of this complaint is made. Before finally passing upon the question the court asked whether an attempt would be made to show acts of illicit intercourse with other persons and was informed by defendant’s counsel that they admitted that they were unable to produce evidence to that effect. The questions asked regarding the complainant’s relations with other men suggested no compromising or even indiscreet conduct on her part. The mere fact that she was in their company and that it might be said that there was a possibility that some one of them was the father of her child had no tendency to contradict her statement as to its paternity. The questions might have been permitted without unduly extending the latitude properly allowed in cross-examination, but it was not error to reject them.
The final complaint requiring consideration is based upon the refusal of the court to give an instruction as follows:
“A few facts or a multitude of facts proved all consistent with the supposition of guilt are not enough to warrant a verdict of guilty. In order to convict on circumstantial evidence, not only the circumstances must all concur to show the defendant committed the crime, but they must be inconsistent with any other rational conclusion.”
In The State v. Andrews, 62 Kan. 207, 61 Pac. 808, it was held to be error to refuse such an instruction *200in a case where the evidence against the defendant was partly circumstantial. There, however, although there was some direct evidence of the defendant’s guilt, the situation was such that the conviction might have been due to the circumstantial evidence alone. Here the state’s case was established by the positive testimony of the complaining witness, if that testimony was believed. Some circumstantial evidence was introduced, but it was incidental and was only important so far as it tended to corroborate the direct evidence referred to. It could not by itself have sustained a conviction. It is therefore obvious that the situation did not call for the instruction appropriate where circumstantial evidence is relied upon to establish the defendant’s guilt, and the court committed no error in refusing to give it. The judgment is affirmed.
(87 Pac. 759.) SYLLABUS BY THE COURT. Statutory Rape — Cross-examination of Prosecutrix. In a prosecution for rape, where the charge is that the defendant had sexual intercourse with the complaining witness with her consent, and the state relies upon the complainant’s story, corroborated only by testimony that the defendant was with her at the time of the alleged intercourse and that at the expiration of the usual period of gestation she gave birth to a child, the defense should be permitted to cross-examine her fully regarding her association with other young men at about the time of her conception, even although no distinct offer is made to show that she had improper relations with any of them; and held, that under the facts of this case the refusal to permit such inquiry was material error. All the Justices concurring.