(concurring in part, dissenting in part). I agree with the majority in their interpretation of People v McCaleb, 37 Mich App 502 (1972), and that defendant’s conviction for gross indecency must be reversed for new trial.
I vote to affirm defendant’s conviction for statutory rape. The majority opinion states:
"On direct examination the complainant testified that she had been assaulted on other occasions by the accused and others.” (Emphasis supplied.)
The single reference in complainant’s direct examination about which 'the majority is concerned occurred after she had explained how defendant and another stopped her on her way home from school on March 16, 1970, took her to the base*701ment of a nearby home, and forced her to perform various sexual acts, including intercourse with five or six males there congregated. She went home, changed her clothes, and in response to her mother’s inquiry of whére she had been, stated, "They did it again”. Reference to the transcript is now appropriate, for it reveals not just an assault but a prior rape:
"Q. What did your mother respond?
"A. She said, 'You mean they raped me,’ and I said, 'Yes.’
"Q. Now, you said, 'They did it again.’ Had something of [that] nature happened to you before?
’A. Yes.
”Q. All right, what happened then after these conversations took place with your mother?
"A. My father got up and said, 'Who?’ — and I said, 'A boy named Otha, he raped me in a[n] apartment building on 14th’1— * * * .” (Emphasis supplied.)
No objection was raised, but on cross-examination the prior incident was thoroughly explored in an obvious effort to impeach the credibility of that witness. No request for a limiting instruction was made, nor was one given.
The prosecution did not seek to argue from the above-quoted reference, nor was any attempt made to justify such a reference as evidence of the motive, intent, scheme or plan of the defendant pursuant to MCLA 768.27; MSA 28.1050. Indeed, it is questionable whether such factors are involved in sex crime. See People v Askar, 8 Mich App 95, 100 (1967), and the cases there cited. But see People v Kelly, 386 Mich 330 (1971).
However, there is another exception to the rule *702that evidence of the commission of another offense by the defendant cannot be admitted for the purpose of showing a general propensity for crime. As stated in People v Donald D Williams, 2 Mich App 91, 94 (1965):
"But in cases involving statutory rape, a qualified exception to the general rule permits proof of speciñc acts of impropriety between the prosecutrix and the accused for the purpose of showing opportunity, disposition of the parties, and intimate relations tending to break down self-respect and modesty. ” (Emphasis supplied.)
The majority makes no mention of this rule. If the prosecution had sought to use the above-quoted reference of prior intimate relations for any purpose, rather than as a curious reference that, but for diligent cross-examination, might have gone unnoticed, it would have been admissible under that exception.
I am of the opinion that no error occurred in this regard since no objection to the testimony was raised and because defense counsel used that information in an effort to impeach credibility. If that evidence had been affirmatively used by the prosecution, a limiting instruction of the purpose of such testimony, if requested, would have been in order. But defendant used that evidence for more than its otherwise admissible purpose, and to now hold the lack of such jury instruction error is not sound.
Finding no other error, I vote to affirm the conviction of statutory rape.
Since the events for which defendant was on trial occurred on March 16, 1970, in a home on Seward Street in Detroit, I assume this reference is to a prior event occurring on 14th Street.