The plaintiff in error moved for a rehearing, and the following opinion was filed October 21,1902:
BardeeN, J.The motion for a rehearing raises a question not discussed in the former opinion, and but barely alluded to in the printed argument of counsel. It is not surprising: that, in the great multitude of objections raised and argued by the plaintiff in error, this should have been passed over in-silence. The mistake in the printed record left the objection pointless, and for that reason it did not receive that consideration its importance deserved. The point now brought definitely and clearly to our consideration is the rejection of certain evidence offered by the plaintiff in error relative to the conduct of the prosecutrix toward him a short time before the alleged assault occurred. It related particularly to the previous relations of the parties. The offer of testimony was somewhat indefinite, but in the colloquy between the co-urt and the counsel sufficient appears to indicate that the latter’s purpose *331was to sbow the previous relations existing between tbe accused and tbe prosecutrix. In ruling upon tbe offer tbe court effectually cut off any inquiry in that direction. He informed counsel tbat: “No matter what was done at that time. It hasn’t anything to do with this case, unless you propose to produce proof tbat this girl was a common prostitute.” Counsel disclaimed any such intention, and all testimony on tbat point was excluded. This was error, and of such serious a character as to require a reversal of tbe judgment. Tbe plaintiff in error bad a clear right to show, if be could, tbat tbe relations existing between him and the prosecutrix were of a friendly character; tbat her conduct toward him was of such a nature as to invite advances on bis part; and this although such evidence would have no tendency to show tbat improper relations existed between them, or tbat her general character or reputation was bad. If their relations were in fact friendly, — if tbe girl’s conduct was such as to invite friendly advances on-bis part, — tbe jury might conclude tbat he intended to accomplish bis purpose by peaceable and persuasive measures, rather than by tbe exercise of force. Tbe girl testified to tbe fact of forcible intercourse. Tbe jury negatived tbat fact by finding tbe accused guilty of assault with intent to commit rape, only. Tbe question of intent, therefore, became a matter of prime importance in tbe case. His conduct toward her wras certainly blameworthy in tbe highest degree, but considering tbe ease on tbe theory adopted by tbe jury, tbat actual intercourse did not take place, there was ground for them to say tbat be did not intend to force her to consent to bis purpose against her will. Tbe testimony offered would have a direct bearing upon tbat intent. The previous relations of tbe parties may always be shown, as evidence tending to show tbe probability or improbability of tbe commission of such an offense. People v. Jenness, 5 Mich. 305. Other cases directly in point to tbe question under discussion are Hall v. People, 47 Mich. 636, 11 N. W. 414, and *332Shirwin v. People, 69 Ill. 55. The error mentioned is so palpable that we have concluded that a reargument of the question would be unprofitable.
The former judgment of this court is therefore vacated, the judgment of the trial court is reversed, and the cause is remanded for a new trial.
By the Gourt. — So ordered.