The first exception taken on the trial will be first considered. John Crouse, one of the jurymen, whose name was drawn from the box, was challenged by the defendant for favor. As a witness on the trial of that issue he stated that he knew the parties and had heard the ease talked about; and he thereafter said, “ I have partially formed an opinion; I don’t know as I have an opinion particularly ; what I heard said created an impression upon my mind and I have that impression now; it'would require evidence to remove that impression.” On his cross-examination he partially qualified this statement as to the opinion he entertained, and said in substance that, “ I think I could sit and try this case fairly and impartially, and render an impartial verdict from the evidence, without being biased by my previously formed opinion, but it would take evidence to remove the opinion formed.”
If a juror is in the least degree biased or prejudiced against
The bias imputed to this juror was based upon the alleged fact that he had formed an opinion upon the merits of the case. If the fact charged was true, then a legal disqualification existed. It has been held in a multitude of eases that if the juror has formed an impression and opinion upon the merits of the case, he is for that reason disqualified. (Lord v. Brown, 5 Denio, 348; Blake v. Millspaugh, 1 Johns., 316.)
On a challenge for favor, the question is, is the juror, as between the parties, free from prejudice ? This issue admits of a wide.latitude of inquiry. In Smith v. Floyd (18 Barb., 522) it was held that the expression of an opinion by a juror against the custom, relative to the depasturing of cattle on certain lands disqualified a juror in a case where one of the defences set up was based upon the alleged existence of the custom. A juror who has served upon a former trial of the same issue, is also disqualified, and for the-obvious reason that, while acting as such, he must have formed an opinion oh the question at issue. The challenge and question of fact involved, the court was empowered to-try and determine. (Code, Civil Pro.; § 1180.)
We see no reason for dissenting from the disposition which the-court has made of the question. The plaintiff’s council contended in his written argument that the rule established by statute in criminal cases should be applied in civil actions. The statute, in its application is expressly limited to criminal trials, and the common law rule as applied to civil cases has not been changed. (Laws,. 1872, chap. 475; Code Crim. Pro., § 376.)-
Under this provision of the statute a juror who- has formed an opinion or impression upon the merits of the case- is- disqualified to-sit as a juror unless three things concur: 1st. lie must declare on oath that he believes that such opinion or impression will not. influence his verdict. 2d. He must also- declare on oath that he believes that he could render an irbpartial verdict according to the evidence. 3d. And the court must be satisfied that he does not. entertain such an opinion or impression as would influence his verdict.. Unless these three things concur the juror must now, as before, be excluded from the- jury box. (People v. Casey, 96 N. Y., 115.),
On the trial the defendant sought to impair the plaintiff’s reputation for virtue and morality for the purpose of diminishing the amount of damages, and gave evidence tending to show specific acts in her life and behavior which indicated a want of virtue and chastity. This evidence the plaintiff insisted was incompetent, but the trial court ruled against the plaintiff’s objection thereto and received the evidence. It is now well settled in the courts of this State that in actions of this character as bearing upon the question of damages such evidence is competent. (Ford v. Jones, 62 Barb., 484; People v. Abbot, 19 Wend., 192 ; Bracy v. Kibbe, 31 Barb., 273; Wandell v. Edwards, 25 Hun, 498; Gulerette v. McKinley, 27 id., 320; 1 Greenl. Ev., § 54.)
• This rule disposes of a large number of exceptions to which our attention has been directed. The plaintiff testified that previous to the defendant’s assault that she had never had sexual intercourse with any man. The defendant called a physician as a witness and asked him the hypothetical question, which, in substance, was an inquiry, whether, in his opinion, pregnancy would probably , result from the first intercourse in a case where the woman, had been ravished and the act accomplished against her will. The plaintiff objected to the question on the ground among others that the subject of inquiry was not such as to call for the opinion of expert witnesses, and involved no question of science ■ or skill, and that the answer, whether in the affirmative or negative, must necessarily be speculative in its character. The witness was permitted to answer the question and the defendants' excepted and the witness gave his opinion that it would not. The object of the inquiry was to support the defendant’s position that he was not the father of the plaintiff’s child.and that her story was a fabrication. We think the evidence was proper and the opinion of learned and experienced medical men on the subject of the inquiry would aid the jury in disposing of the issue, and the ruling did not contravene the general rule that fact and not opinions are to be given in evidence.
The common mind does not readily comprehend the laws of nature which culminate in man’s complex organism, and they cannot be
We think the evidence as to the conversation between the defendant and his mother, in the absence of the plaintiff, soon after the time of the alleged assault was also competent as the plaintiff had given evidence as to the same interview, and no exception was taken to the ruling by the defendant.
After the defendant had made his case the plaintiff called a witness who testified that he knew the plaintiff, and he was then asked this question: “ Do you know what her reputation was in the town where she lived ? ” To this question the defendant objected and the same was sustained, and the plaintiff excepted. The defendant then stated to the court that he should not claim to the jury that the plaintiff’s character, according to the speech of people, was not good and should not attack her character, but that from her conduct and the circumstance proved he should ask the jury whether it was not more likely that she gave way to her passion with White rather than that Johnson should have done the act complained of. The plaintiff then offered testimony as to the general character of the plaintiff for the purpose of showing that she was a person of good moral character, and as tending to prove her character for chastity and morality, and as corroborated in the main facts in the case, and also for the purpose of rebutting the presumption which may have been raised against-her, and as bearing on her character for truth and veracity 6 This was objected to by the defendant’s counsel' as inadmissible and incompetent, agd that proof of her general reputation and character is not admissible as it was not attacked and that he should not claim that it had not been good in the neighborhood in which she lived, The objection was sustained and the plaintiff excepted.
The plaintiff delayed disclosing to her female friends the conduct of the defendant until she became satisfied that, she was with child, although she met her most intimate female friends the very day of the occurrence and under such circumstances that she had a free opportunity to relate to them the outrage which she alleges that the defendant had perpetrated. Upon this evidence the court charged the jury, at the defendant’s request, in substance as follows : The fact that she did not disclose the assault within a reasonable time after an opportunity presented itself for her SO' to do, is in itself a
The part of the charge relative to the degree of résistance that the plaintiff was called upon to make to defeat the villainous purpose of the defendant was correct and in accordance with the rule laid down by the elementary writers and stated in the decisions of the courts of this State. (People v. Dohring, 59 N. Y., 374.)' Many other exceptions were taken to the rulings of the court upon the trial but we fail to discover any error therein. Many other points were made and argued but no exceptions were taken so as to bring up the questions discussed.
The judgment should be affirmed.