McDermott v. State
13 Ohio St. 332
Ohio
1862
Check Treatment
Peck, J.

Thе plaintiff in error was tried by a jury in Trumbull common pleas, found guilty of a rape upon one Sarah Helme, and sentenced to the рenitentiary. He now seeks to reverse that conviction and sentence upon two principal grounds.

1. Eor error in excluding from the jury testimony offered by him, that said Sarah,'while on the cars, on her way to the town of Warren, where the ravishment is said to have oсcurred, agreed with a third person to meet him on a future day in Youngstown, and have sexual intercourse with him there; and also, that she рroposed to such third person, that if she did not meet her husband in Warren, she would go with him to some place in that town, on the same night, fоr a like lascivious purpose.

We see no'error in the exclusion of this testimony by the .•court. This court in McCombs v. The State, 8 Ohio St. Rep. 643, have already decided, upon full consideration,- that in prosecutions for rape, the character of the prosecutrix for chastity, can not be impeached by evidence of particular acts of unchastity with persons other than the accused, and also that evidence of such other instances ‍‌‌​‌‌‌​​​‌​​​​‌‌​​​‌‌‌​‌‌​​‌‌​​​‌​​​‌‌​‌​​‌​‌‌​​‍is not admissible on the trial. If proof of the act itself is not admissible, it is difficult to give a reason for permitting proof of an agreement tc commit the act. The reason which excludes proof of the act, aрplies with still greater force to the mere agreement to do it.

*334We have been furnished with a very elaborate argument in favor of its admissibility, as tending to show the awak ened desires and lascivious propensities of the prosecutrix shortly prior to the alleged assault, thereby lessening the probabilities that it was consummated forcibly and against her will. It by no means follows, that a desire to have sexual intercourse with one-person, tends, legitimately, to prove a willingness to have like intercourse with another and different person. Indeed, the reverse is much the most probable ; but, however this may be, the introduction of such proof is pposed to the well-settled rulеs of evidence. See cases cited in 8 Ohio St. Rep., supra.

2. It is said that the court also erred in admitting testi mony, offered by the state, and оbjected to by plaintiff in error, to disprove the truth of certain ‍‌‌​‌‌‌​​​‌​​​​‌‌​​​‌‌‌​‌‌​​‌‌​​​‌​​​‌‌​‌​​‌​‌‌​​‍specific reports in regard to said Sarah, alluded to by witnesses of plaintiff in error, while deposing as to her general character for chastity.

Several witnesses were examined, on the part of the accused, as to the general character of the prosecuting witness for chastity. Some of the witnesses first examined, in their crossexamination, and others subsequently called, in their examination in chief, spoke of certain specific reports in circulation of her improper intimacy with Andrew Pritchard and аlso with Levin Arnold. While others still, do not appear to have, in any way, referred to such specific reports, but stated they had the means of knоwing her general reputation for chastity, and that it was had. There does not appear to have been any objectiоn to the proof thus given; but the prosecuting attorney, to rebut it, called Andrew Pritchard and Sarah Helme, offering to prove by them that the specific reports of such improper intimacy between them and also between the said Sarah and Levin Arnold werе, in fact, untrue. The plaintiff in error objected to this proof, but his objection was overruled, and they thereupon testified that therе had never been any improper intimacy between said Sarah and either of said persons.

The general character of the prosecutrix for chastity, is, as we have seen, properly in issue in such prosecutions; out *335particular acts of lewdness with persons other than the accused, could not be proved on the trial. Eirst, because she is presumed to be unpreрared to disprove such specific accusations, without previous notice; and, secondly, because it would creаte collateral issues, ‍‌‌​‌‌‌​​​‌​​​​‌‌​​​‌‌‌​‌‌​​‌‌​​​‌​​​‌‌​‌​​‌​‌‌​​‍indecisive of the guilt or innocence of the accused, but well calculated to embarrass and mislead the jury. The last reason applies with equal force to the testimony objected to by the plaintiff in error. It was an attempt, by the prosecutor, to rebut proof of general reputation, by proving that some of the reports prejudicial to Sarah Helme, and which doubtless contributed to her bad reputation, were false and defamatory.- Such testimony would create collateral issues as to thе real truth or falsity of the reports, but would not disprove that such reports were in general circulation, nor that they were generally accredited by the community. No argument in favor of its admissibility can be drawn from the fact that these specific reports were stated by the witnesses of the accused. They were not called for by him, nor even stated by any of his witnesses in chief, until after their existence had been proved on the crossexamination of the prosecuting attorney, and then witnesses, very naturally, alluded to reports already in proof, in justification of their estimate of hеr bad reputation. No evidence was offered to prove that the reports were true in fact, nor was any objectiоn made to their introduction, by the prosecuting attorney.

The introduction of illegal testimony, without objection, does not authorize the party failing to object, to introduce similar proof, and much less, when, as in this case, its introduction would create an additiоnal collateral issue as to the truth of the report itself.

The issue presented by proving her general reputation ‍‌‌​‌‌‌​​​‌​​​​‌‌​​​‌‌‌​‌‌​​‌‌​​​‌​​​‌‌​‌​​‌​‌‌​​‍for chastity bad, was, not that such reputation was deserved, but that it was generally accredited. It was competent, therefore, for the state, upon crossexamination, to ascertain from the witnesses their means of knowing her general reputation; the origin and character of any and all reports prejudicial to her; the extent to which those repоrts had prevailed; the *336time when and the persons from whom the witnesses heard them; and; in short, everything which reflects upon the nature and general prevalence of the reputation imputed to her; but for the sole purpose of showing that, in fact, no such general reputation was prevalent in the community. The jury wоuld thus be put in possession of all the facts in regard to the existence and extent of.such reputation, and be able to detеrmine how far it affected her credibility, and disproved the charge which she had preferred.

We are, therefore, of the opinion that the court below erred in admitting the testimony of Andrew Pritchard and Sarah Helme, in regard to the intercourse between them, as set forth in the bill of exceptions; and for this reason, the judgment is reversed, and the cause remanded to the court of common pleas for further proceedings.

Sutliee, C.J., and Gholson, Brinkerhoee ‍‌‌​‌‌‌​​​‌​​​​‌‌​​​‌‌‌​‌‌​​‌‌​​​‌​​​‌‌​‌​​‌​‌‌​​‍and Scott, JJ., concurred.