
    The People, Resp’ts, v. Nicholas N. Betsinger, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 6, 1890.)
    
    Rape—Evidence.
    In a prosecution for rape a physician was allowed to testify that about three months after the alleged crime he made an examination of the complainant, and found the hymen absent; that there were traces of one, but it was not intact or in a normal condition for a virgin. lleld,ths.t it was competent for defendant, in answer to such testimony, to show that complainant had been having intercourse with others which would account for such condition, and that it was proper to ask her on cross-examination whether she had acknowledged that she wrote to a man asking how he “would like to do it to her.”
    
      Appeal from a judgment of the court of sessions of the county of Onondaga, rendered upon a verdict of conviction of the defendant of the crime of rape (the defendant having been sentenced to an imprisonment in the state’s prison for the term of fourteen years and ten months); also an appeal from three several orders: (No. 1.) Denying a motion made in arrest of judgment; (No. 2.) Denying a motion for a new trial; and (No. 3.) Denying a motion to set aside and vacate the verdict.
    The indictment alleges that the rape was committed upon one Frieda Goessley, in the town of Mareellus, on the 10th day of February, 1890. It appears in the evidence that Frieda was born October 20, 1875, in Germany, and that near the last of January, 1890, she went to live with the defendant’s family, and before that time she had lived in an orphan asylum at Auburn. The defendant, as a witness upon the stand, denied absolutely the accusation, and called witnesses to testify that his general character was good.
    
      Lawrence T. Jones, for app’lt; B. J. Shove, for resp’ts.
   Hardin, P. J.

Apparently for the purpose of corroborating the complainant, the prosecution called Dr. Head, a physician and surgeon of twenty-five years’ practice, who testified that about the 5th of May he made a manual examination of the complainant. In the course 'of his testimony he said, viz.: “ I found the hymen absent; there were traces of a hymen there, but it was not intact ; I could hardly swear that it had been broken or ruptured; I found traces of the hymen there, but it was not intact; it was not in a normal condition for a virgin. * * * She was well developed. I am not able to state whether she had reached womanhood or not.” This testimony was received under objection and exception "by the defendant, and after it had been given the defendant moved to strike the evidence out “upon the ground that the examination was made too long after the alleged rape, and upon the ground that it is generally immaterial and incompetent evidence.” The court refused to strike it out, observing, viz.: “I think it goes to the value of the testimony rather than its competency.” The motion to strike out was denied, and the defendant took an exception.

When the complainant was upon the stand she was asked'sev1 eral questions as to her previous habits and practices, and to one of the questions she replied, viz.: “ I did not tell Edwards North, when I was sliding down hill with him, that a man did it to me once, nor anything to that effect.” Thereafter the defendant called as a witness Edwards North, who testified that he was acquainted with the complainant and had been in the habit of playing with her; and he was asked if he remembered having had. a talk with the complainant one day when they were sliding down hill together “ about something that some man had done to her once before; ” this question was objected to by the people and the objection was sustained. Apparently the evidence was avowed to be offered for two purposes; the first as bearing upon the credibility of the complainant, and secondly as tending to overcome the testimony of Dr. Head and the inferences to be drawn therefrom. The evidence was excluded by the court and the defendant took an exception; then the question was put to him by the defendant, viz.: “Did she say that this man was a drunken man?” and the witness answered “Yes, sir;” it was then objected to and the court struck out the answer, and to that ruling the defendant’s counsel took an exception, and thereupon the court made this remark: “I deem it non-essential entirely, whether this child has been raped or otherwise ill-treated a dozen times prior to this.” , Some further colloquy took place between the court and the counsel for the defendant, and at the close thereof, the court having failed to either strike out the testimony of Dr. Head or to allow the evidence which was proposed, an exception was taken by the defendant’s counsel.

We think the trial court fell into an error in the rulings and statements which we have quoted. After -the testimony of Dr. Head had been given it was entirely competent for the defendant to show, if he could, by evidence, that the complainant had been having intercourse with other parties which would account for the condition in which the doctor stated he found her sexual organ. Surely if she had “ been raped or otherwise ill-treated a dozen times prior to this,” the time when Dr. Head made the personal examination of her, the force of the facts stated by him in his narration of the condition in which he found her at the time he made the examination would have been broken, and it would have been for the jury to say whether or no the condition in which he found her was by reason of any act of the defendant or by reason of her practices with other parties. People v. Crapo, 76 N. Y., 288; affirming same case, 15 Hun, 269.

(2.) When the complainant was upon her cross-examination she was asked whether she acknowledged to Mrs. Walford that she “ wrote to Stacy Amidon and asked him how he would like to do it to her.” The witness seems to have answered in the first instance “Hot that I remember of,” arid when asked if she would swear that she did not do it an objection was taken and the objection was sustained, and the defendant took an exception. It appears- by the case that the question was repeated, and although objected to, that the witness said “Ho, sir;” and thereafter the question was repeated, viz: “ But you do not remember whether you acknowledged to Mrs. Walford that you wrote them?” and the court upon an objection observed “ That has been excluded once;” the defendant took an exception. Thereupon the defendant was about to make an offer and the court observed “ I do not think it is a proper exarninatiori. My judgment is about as I have ruled;” to that the defendant took an exception. We think the court might very well have properly allowed greater latitude in the cross-examination of the complainant. People v. Hulse, 3 Hill, 316.

(3.) Several very close questions arose in the case in respect to the rulings made when jurors were under examination. We do not deem it needful to examine all the rulings made in respect to the j urors, inasmuch as we are of the opinion that the views already expressed must lead to a new trial.

Conviction, orders and judgment reversed and a new trial ordered in the court of sessions of Onondaga county, to which court proceedings are remitted.

Martin, J. concurs; Merwin, J. concurs in result  