56 So. 454 | Miss. | 1911
delivered the opinion of the court.
Appellant was indicted and convicted of the crime of rape, the female being under the age of twelve years. On the day of the alleged commission of the crime, and a short time thereafter, this girl was examined by a physician, who testified that she was not bruised in any way, and that he found no indications of any intercourse having been had with her on that day; that the vaginal orifice was abnormally large, and the hymen was obliterated; that this had not been done that day, but had been done some time prior thereto. This physician also testified, as did two other physicians, who afterwards examined this girl, that it would have been impossible for a man with a normal sized sexual organ to have had intercourse with her without bruising her. In this state of the evidence, defendant offered to prove that this girl had had sexual intercourse with men prior to the date of the- commission of the alleged crime, which evidence was by the court excluded.
Previous unchaste character in this class of cases is ordinarily wholly immaterial, and is not admissible in evidence; but here whether o.r not this girl had previously had intercourse with men was very "material. Practically the only corroboration of her testimony that .she had been raped was the fact that her hymen had been .ruptured; and, had it been shown that this rupture occurred at some prior time, this corroborating testimony would have been eliminated. The exclusion of this testimony was, therefore, fatal error, and the judgment of the court below is reversed, and the cause remanded.
Reversed and remanded.
