151 Minn. 217 | Minn. | 1922
Defendant was indicted, tried and convicted of carnally knowing, on November 7, 1920, a female child of the age of 14 years. He moved for a new trial, and, upon hearing, the court, being of the opinion that the questions raised were doubtful and of such importance as to require the decision of this court, certified 5 questions for review, all of which may be considered under two headings: (1) Was it error to limit the cross-examination of the prosecuting witness to instances within the time when conception might have taken place, and to exclude testimony of other witnesses as to admissions claimed to have been made by the prosecutrix of having-had illicit relations with persons other than defendant outside of such period? (2) Did the court err in its charge relative to the birth of a child being corroborative proof that the accused was guilty of the offense charged?
The prosecutrix was delivered of a child in August, 1921. The child was exhibited in evidence. Upon cross-examination of the prosecuting witness, defendant attempted to show particular acts of illicit relations on her part with others than the defendant without reference to time, and by other witnesses admissions on her part of having had illicit relations with other men outside of such period. The offer was excluded as being tool indefinite as to time, the court holding that to render the same admissible the acts referred to must have been within the time when conception might have taken place. In this state the age of consent is fixed by statute at 18 years. In. a prosecution for carnal knowledge of a female under the age of consent, evidence of illicit relations of the prose-cutrix with others than defendant, as bearing upon her credibility, is inadmissible. 22 C. J. § 579, p. 481; People v. Johnson, 106 Cal. 289, 39 Pac. 622; State v. Hammock, 18 Idaho, 424, 110 Pac. 169; State v. Smith, 18 S. D. 341, 100 N. W. 740; People v. Abbott, 97 Mich. 484, 56 N. W. 862, 37 Am. St. 360. But, where pregnancy follows the act charged, defendant may, for the purpose of refuting any inference arising therefrom, offer proof that other men had illicit relations with the complainant within the time when con
Upon cross-examination counsel interrogated the prosecuting witness at considerable length as to having had illicit relations with other men at different times, and When objected to stated to the court that they did not offer it as a defense to the charge contained in the indictment, but as bearing upon the credibility of the witness. The court held that the testimony was inadmissible for that purpose, but, if the acts referred to were at a time when conception might have taken place, the testimony would be received. The witness admitted 'having told Mrs. Loitz and Mrs. Perry of having illicit relations with other persons, without specifying» the time. No further foundation was laid for the impeaching testimony. Thereafter upon the trial the witnesses Loitz and Perry were called and interrogated as to the conversations had with the complaining witness, which was objected to and excluded. The ruling was right. We do not understand, by question number 4, or otherwise, that the trial court excluded any evidence of acts of intercourse at about the time pregnancy occurred; on the contrary, the learned trial court seems to have been quite specific in ruling that said evidence was admitted. But if as a matter of fact such evidence was excluded, a fact not shown by the present record, it was error.
