delivered the opinion of the court.
Herron was tried on an indictment charging him with the rape of a thirteen-year-old girl on February 23, 1966. Va. Code Ann. § 18.1-44 (Repl. vol. 1960) (authorizing the death penalty or confinement for life or a term of not less than five years where a person carnally knows a female child under the age of fourteen years, whether or not the female consented). This appeal is from the conviction order, which sentenced Herron to ten years in the penitentiary. Herron complains principally of an instruction that permitted the jury to find him guilty if it believed he had sexual intercourse with the girl at any time before she was fourteen.
At the trial the thirteen-year-old prosecutrix testified that Herron had sexual intercourse with her on the afternoon of February 23, 1966. Over the defendant’s objection the court permitted her to testify further that Herron had had sexual intercourse with her “[a]bout every other week end” during the year preceding February 23, 1966. We find no error in the admission of this evidence.
[1] We have held that in a prosecution for statutory rape, where the female’s consent is not a defense, evidence of an act of sexual intercourse after the day specified in the indictment is admissible “as tending to show the disposition of the defendant with respect to the particular act charged”.
Stump v. Commonwealth,
Evidence of acts of sexual intercourse for which the defendant is not being tried should be admitted, however, for only limited purposes. A jury should be permitted to consider such evidence, if it believes the evidence to be true, as showing the defendant’s inclina
[2] The vice of Instruction 1, given by the trial court in this case over the defendant’s objection, is that it permitted the jury to find the defendant guilty of an offense with which he was not charged. The instruction reads:
“The Court instructs; [sic] the Jury that if you believe from the evidence beyond a reasonable doubt that the defendant, Israel Wesley Herron, had sexual intercourse with Phyllis Joan Miller at any time before she was fourteen years of age you should find the defendant guilty regardless of whether or not force was used by him in the accomplishment of such act and regardless of whether or not such act was done with or without her consent, and fix his punishment, at death, or by confinement in the penitentiary for life or for any term not less than five years.” [Emphasis sup-lied.]
Herron was indicted and tried for one offense, rape on February 23, 1966. He was not put in jeopardy for any other offense, and he was not called upon to defend any other charge. Yet Instruction 1 permitted the jury to return a verdict of guilty even if it believed Herron not guilty of the offense with which he was charged, so long as it believed him guilty of a similar offense on some earlier date. The giving of Instruction 1 was therefore reversible error.
Although in
Lear
v.
Commonwealth,
“The Court instructs the jury that if the evidence introduced by the defendant that he was not at the scene of the alleged crime at the time alleged is such as to create and leave in the mind of the jury a reasonable doubt of his presence there, then you shall find the defendant not guilty of the offense of February 23, 1966.”
But by telling the jury that under certain circumstances it should find Herron not guilty of the offense of February 23,1966, Instruction C implied that the jury could find him guilty of an offense committed on another day. So Instruction C aggravated the error of Instruction 1.
The only other assignment of error warranting discussion relates to the overruling of objections that certain testimony given by the prosecutrix’s mother was hearsay.
[4] On direct examination, the Commonwealth’s attorney asked the mother when she learned “anything regarding the case we are trying here today”. She answered, “. . . Friday [February 25, 1966, two days after the alleged offense] ... me and my little daughter [the prosecutrix’s younger sister] went down to the laundrymat. . After being cautioned not to repeat what her younger daughter had said, the mother testified, “Well, then’s when I found it out, on Friday”. Because the mother was not permitted to repeat what her daughter had said, the trial court properly overruled defense counsel’s objection to this testimony.
Then the mother was asked what she did. She answered, “Well, when I come home [on Friday, February 25, 1966], Phyllis [the prosecutrix] had been to the hop, and so when she come home from the hop I asked her, and she started crying and she said: yes, Mama, he had, that Wesley [Herron] had been fooling with her—”. The court overruled defense counsel’s objection to this testimony, and permitted the mother to give further details of what the prosecutrix had told her about acts of sexual intercourse with Herron.
Although it is not pointed out in the briefs, we recognize the rule that a complaint made by the alleged victim of a rape is admissible. The victim’s failure to complain may be taken as discrediting her
[ 5 ] The prosecutrix in this case did not volunteer information to her mother about the alleged offense; she only answered her mother’s questions. So it may be argued that the prosecutrix did not make a “complaint” within the meaning of the rule referred to in the preceding paragraph. But this argument has been answered by our decision in Locke v. Commonwealth, supra, where we treated the answer of a fifteen-year-old girl to questions put by the police as a complaint within the meaning of the rule.
[6] The prosecutrix in this case made no report of the alleged offense until the second day after it happened. And we have indicated, at least by dictum (see, e.g.,
Pepoon
v.
Commonwealth, supra
at 810,
Upon retrial, the court should admit testimony to show that the prosecutrix told her mother the alleged offense had been committed, but should exclude the details of the offense as told to the mother.
Reversed and remanded.