Appeal from the County Court of Nevada County.

The defendant was a married man, and the indictment charged him with having committed a rape on Ellen Dorsey, a girl who lived with his family, on the first day of December, 1866.

The defendant introduced testimony tending to show that the character of Miss Dorsey for chastity was bad. When the defendant rested the prosecution offered testimony tending to show her character in that respect good, and the defendant objected, but the Court overruled the objection.

The defendant called as a witness a Mrs. Bond, but she was not in Court. The defendant’s attorney then asked the Court for an attachment for the witness, as she had been subpoenaed. The District Attorney asked what counsel expected to prove by Mrs. Bond. Defendant's attorney replied that he expected to prove that while Miss Dorsey lived with her she went into her bedroom one morning very early, and found a man named Carter in bed with her, and both Carter and Miss Dorsey were in their night clothes. The District Attorney then admitted that such was the fact, whereupon the counsel for the defendant did not insist upon the presence of Mrs. Bond as a witness.

The counsel for the defendant asked the Court to inei”a- •lithe jury that the admission of the above fact by the District Attorney must be taken for all purposes of the trial as an admission that went to the impeachment of Miss Dorsey, as well as to all other points or facts of this case to which said fact could have applied if it had been proved. The Court refused the instruction, and defendant’s attorney excepted.

Miss Dorsey had testified on her cross - examination that she was not in bed with Carter, but had admitted that he was in her room. The defendant, who was convicted and sentenced, appealed.

The other facts are stated in the opinion of the Court.