Shea

Information charging the crime of rape. Defendant was convicted, and on his motion the court made an order granting a new trial, from which order the people have appealed.

The question involved in this appeal arises upon the admissibility of certain 'evidence. This evidence was introduced by defendant and tended to prove that the prosecutrix, previous to the time when the commission of the offense here charged was laid in the information, had consented to the having of sexual intercourse with other men. In the early case of People v. Benson, 6 Cal. 221 , 65 Am. Dec. 506 , this identical question was involved, and it was there held that such evidence was competent and admissible. In People v. Johnson, 106 Cal. 289 , the Benson case is cited, and the court said: “This class of evidence is admissible for the purpose of tending to show the non-probability *153 of resistance upon the part of the prosecutrix. For it is certainly more probable that a woman who has done these things voluntarily in the past would be likely to consent than one whose past reputation was without blemish, and whose personal conduct could not truthfully be assailed.”

It may be conceded that the weight of…

I dissent, for the reason that in my opinion, the court erred in allowing evidence tending to show specific acts of adultery by the prosecutrix with other men. The general rule undoubtedly is that specific acts cannot be proven for the purpose of impeaching a witness; and I see no force in the reasoning that such acts are admissible because they tend to show that the prosecutrix probably consented at the time of the alleged rape. Such acts were no more admissible than would former assaults on others by a man charged with murder be admissible because they would tend to the probability that the defendant committed the murderous assault charged. In People v. Benson, 6 Cal. 221 , 6 Am. Dec. 506 , the court was evidently not sure of its position, because, having referred to section 214 of 3 Greenleaf on Evidence, where an exactly opposite rule is declared, and which, as the court say, was probably founded upon Rex v. Hodgson, 1 Russ. & R. 211, and other English cases, it uses this language: “But, admitting the full force *154 of the rule in Rex v. Hodgson, supra, still, we are of the opinion that the circumstances of this case modify the rule,” and proceeds to say,in effect,that the…