The defendant was tried upon an indictment charging in count 1, “That the defendant, Ralph S. Bemis, on October 31, 1919, at Northboro in said county of Worcester, did assault Ida E. Clifford, a female child under the age of sixteen years, with intent unlawfully and carnally to know and abuse her, and her, the said Ida E. Clifford, did unlawfully and carnally know and abuse;” in count 2, “That the defendant, Ralph S. Bemis, on April 4, 1920, at said Northboro did in and upon Ida E. Clifford, a female child under the age of sixteen years, make an assault with intent her, the said Ida, E. Clifford, unlawfully and carnally to know and abuse;” and in count 3, “That the defendant, Ralph S. Bemis, on August 21, 1920, at said Northboro in and upon Ada V. Clifford, a female child under the age of sixteen years, did make an assault with the intent her, the said Ada V. Clifford, unlawfully and carnally to know and abuse.”
*585Ida E. Clifford attained the age of sixteen years on July 31, 1920. Ada V. Clifford attained the age of sixteen years on October 19, 1921. Ida E. Clifford alone testified that on October 31, 1919, and on April 11, 1920, the defendant had sexual intercourse with her. There was no corroboration.
Subject to the exception of the defendant, Ida E. Clifford testified that in August, 1920, after she had attained the age of sixteen years, the defendant came to her bedroom and there had sexual intercourse with her. In support of this exception the defendant relies upon the general rule that evidence of a distinct crime unconnected with that laid in the indictment cannot be given in evidence. Commonwealth v. Feci, 235 Mass. 562, 567. The rule of criminal evidence involved is however subject to many exceptions. Commonwealth v. Choate, 105 Mass. 451. Commonwealth v. Bradford, 126 Mass. 42. Commonwealth v. Robinson, 146 Mass. 571. Commonwealth v. Snell, 189 Mass. 12. Moore v. United States, 150 U. S. 57. People v. Molineux, 168 N. Y. 264. One of the recognized exceptions invariably followed in this Commonwealth is that, when a defendant is charged with any form of illicit sexual intercourse, evidence of the commission of similar crimes by the same parties though committed in another place, if not too remote in time, is competent to prove an inclination to commit the act charged in the indictment, Commonwealth v. Nichols, 114 Mass. 285, and is relevant to show the probable existence of the same passion or emotion at the time in issue. Sullivan v. Hurley, 147 Mass. 387. Negus v. Foote, 228 Mass. 375. The judge correctly instructed the jury in respect to the limited use it was permitted to make of the testimony excepted to and thereby fully conserved the rights of the defendant.
Subject to the exception of the defendant, a physician testified that he had examined Ida E. Clifford in October, 1920, and found there was no trace of a hymen and that she had been penetrated. This evidence of her physical condition clearly was not too remote from the dates named in the indictment, and it was relevant to establish the material fact that she had had sexual intercourse with some man, who might or might not be found upon the evidence to be the defendant. The rights of the defendant were guarded by the instruction “that evidence by itself *586alone, without referring to any other evidence in the case would not be enough for you.to rely on in convicting this defendant.”
- Ada V. Clifford testified that on August 21, 1920, she was in her sister’s bedroom in the defendant’s home; that the defendant came into the bedroom between seven and eight o’clock in the evening and started “to get fresh with her;” that he put his foot over her right foot and “finally, let her up;” that he said nothing and finally went down stairs. During this occurrence Ida E. Clifford, her sister, was in the bedroom. In cross-examinatian,' Ada testEed, “All he did was to put his hand on my bloomers.” The record discloses no further material evidence in support of either count of the indictment.
The defendant requested the court to instruct the jury (1) “ That on all three counts the verdict should be ‘not guilty’;” and (2) “That there is no evidence that the defendant assaulted Ada Y. ClEord with intent unlawfully and carnally to know and abuse her, as described in the third count of this indictment, and your verdict should be ‘not guilty.’” These requests were properly refused. The testimony of the single witness if believed was sufficient to sustain the charge contained in counts one and two, and the testimony of the sister that the defendant put his foot over the foot of Ada, put his hand upon her bloomers and “finally, let her up” was sufficient to establish an assault upon Ada, and for the jury to infer in the light of all the circumstances the criminal intent of the defendant charged m the indictment. Commonwealth v. Roosnell, 143 Mass. 32.
Commonwealth v. Merrill, 14 Gray, 415, is distinguishable in that the female assaulted was above the age of non-assent.
Exceptions overruled.