
    Isabel Young, by her guardian, App’lt, v. George W. Johnston, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 25, 1887.)
    
    1. Ceiminal tbial—Jubob—When disqualified.
    If a juror is in the least degree biased or prejudiced against either party, he is disqualified to serve and -a challenge based thereon should be sustained.
    2. Same—Opinion on meeits disqualifies.
    If the juror has formed an impression or opinion upon the merits of the case, he is for that reason disqualified.
    3. Same —Rule in ceiminal case does not apply to civil cases— Code Cbim. Peo., § 376.
    The provisions of Code Criminal Procedure, section 376, are expressly limited to criminal trials, and the common law rule as applied to civil cases has not been changed.
    4. Evidence—Competency.
    In actions for damages for criminal assault, evidence tending to show specific acts in the plaintiff’s life and behavior which indicated a want of' virtue and chastity is competent as bearing upon the question of damages.
    
      6. Same—Expert testimony.
    A physician called by the defendant was asked, whether, in his opinion, pregnancy would probably result from the first intercourse in a case where the woman had been ravished and the act accomplished against her will. Sel >, that it was not error to permit him to express his opinion. Bradley, J., dissenting.
    6. Same—Evidence as to reputation for truth and veracity.
    The plaintiff's general reputation for truth and veracity had not been attacked by the defendant by proof that her reputation in that respect was bad. Held, that it was not competent for the plaintiff to sustain her character by proof of her general good character.
    7. Same—When competent.
    Where an issue is raised on the trial collateral to the issues involving the merits, as where a witness’ general character has been attacked by calling impeaching witnesses, or it appears by his own evidence that he has lived, an evil and immoral life, then the party calling him may sustain his general character for truth and veracity.
    7. Same—Weight of—Effect of failure to disclose criminal assault promptly.
    The silence of plaintiff after a reasonable opportunity to expose the defendant’s conduct to her female relatives and friends is a circumstance from which the jury might infer that her story was not reliable.
    Appeal from a judgment entered upon a verdict in the defendant’s favor.
    This is an action for the alleged assault and battery upon the person of the plaintiff, who was at the time under twenty-one years of age. For the purpose of enhancing the damages, the plaintiff alleges that the defendant forcibly defiled and carnally knew her, whereby she became pregnant and thereafter was delivered of a child, and that in consequence thereof she became sick and her health was impaired, and she suffered in her peace of mind, and her good name and reputation was brought in question by friends and acquaintances.
    As a witness in her own behalf, she gave evidence as to the truth of the charge, and also as to the effect of the assault upon her mind and body. The case comes before this court to be heard upon the exceptions taken on the trial.
    The record does not show that any motion was made for a new trial at the circuit upon the judges’ minutes, or at special term upon a case. In the case, it is stated that all the evidence bearing upon the rulings and exceptions thereto is fully stated therein.
    
      Farrington & Laing, for app’lt; Frank Brundage, for resp’t.
   Barker, J.

—The first exception taken on the trial will be first considered. John Crouse, one of the jurymen whose name was drawn from the box, was challenged by the defendant for favor. As a witness on the trial of that issue, he stated that he knew the parties and had heard the case talked about; and he thereafter said: “I have partially formed an opinion; I don’t know as I have an opinion particularly; what I heard said created an impression upon my mind and I have that impression now; it would require evidence to remove that impression.” On his cross-examinatian, he partially qualified that statement as to the opinion he entertained, and said in substance: “I think I could sit and try this case fairly and impartially, and render an impartial verdict from the evidence without being biased by my previously formed opinion, but it would take evidence to remove the opinion formed.”

If a juror is in the least degree biased or prejudiced against either party, he is disqualified to serve, and a challenge based thereon should be sustained.

The bias imputed to this juror was based upon the fact that he had formed an opinion upon the merits of the case. If the fact charged was true, then a legal disqualification existed. It has been held in a multitude of cases that if the juror has formed an impression or opinion upon the merits of the case he is for that reason disqualified. Lord v. Brown, 5 Denio, 348; Blake v. Millspaugh, 1 John. Rep., 316.

On a challenge for favor the question is, is the juror, as between the parties, free from prejudice? This issue admits of a wide latitude of inquiry. In Smith v. Floyd (18 Barb., 522), it was held that the expression of an opinion by a juror against the custom relative to the pasturing of cattle on certain lands, disqualified a juror in a case where one of the defenses set up was based upon the alleged existence of the custom. A juror who has served upon a former trial of the same issue is also disqualified, and for the obvious reason that, while acting as such, he must have formed an opinion on the question in issue. The challenge and question of fact involved, the court was empowered to try and determine. Section 1180, Civ. Pro.

We see no reason for dissenting from the disposition which the court made of the question. The plaintiff’s counsel contended in his written argument that the rule established by statute in criminal cases should be applied in civil actions. The statute, in its application, is expressly limited to criminal trials, and the common law rule as applied to civil cases has not been changed. Laws of 1872, chap. 475; Code Crim. Pro., § 376.

Under this provision of the statute a juror who has formed an opinion or impression upon the merits of the case is disqualified to sit as a juror unless three things concur:

First. He must declare on oath that he believes that such impression or opinion will not influence his verdict.

Second. He must also declare on oath that he believes that he could render an impartial verdict according to the evidence.

Third. And the court must be satisfied that he does not entertain such an opinion or impression as would influence Ms verdict.

Unless these three things concur, the juror must now, as before, be excluded from the jury box.

If we may review the decision of the trial court, on this appeal we are not satisfied, as it was not satisfied, that the juror did not entertain such such opinion or impression as would influence his verdict.

On the trial the defendant sought to impair the plaintiff’s reputation for virtue and morality, for the purpose of diminishing the amount of damages and gave evidence tending to show specific acts in her life and behavior which indicated a want of virtue and chastity. This evidence the plaintiff insists was incompetent, but the trial court ruled against the plaintiff’s objection thereto, and received the evidence. It is now well settled in the courts of this state, that in actions of this character, as bearing upon the question of damages such evidence is competent. Ford v. Jones, 62 Barb., 484; People v. Abbott, 19 Wend., 192; Bracy v. Kibbe, 31 Barb., 273; Wandell v. Edwards, 25 Hun, 498; Oulerette v. McKinley, 27 Hun, 320; 1 Green-leaf on Evi„, § 54.

This rule disposes of a large number of exceptions to which our attention has been directed.

The plaintiff testified, that previous to the defendant’s assault, she had never had sexual intercourse with any man. The defendant called a physician as a witness, and asked him the hypothetical question, which, in substance, was an inquiry, whether in his opinion, pregnancy would probably result from the first intercourse in a case where the woman had been ravished and the act accomplished against her will. The plaintiff objected to the question on the ground among others, that the subject of inquiry was not such as to call for the opinion of expert witnesses and involved no question of science or skill, and that the answer whether in the affirmative or negative must necessarily be speculative in its character. The witness was permitted to answer the question and the defendant excepted, and the witness gave his opinion, that it would not. The object of the inquiry was to support the defendant’s position, that he was not the father of the plaintiff’s child, and that her story was a fabrication.

We think the evidence was proper and the opinion of learned and experienced medical men on the subject of the inquiry, would aid the jury in disposing of the issue and the ruling did not contravene the general rule, that facts and not opinions are to be given in evidence.

The common mind does not readily comprehend the laws of nature which culminate in man’s complex organism, and they cannot be solved without much study and observation and are discovered only by most ingenious and profound research. The rules of evidence permit learned and scientific men, to express their opinion, based on their study and observation as to what would probably be the result or direction of the laws of nature on an ascertained state of facts. If, however, there views are not correct, we are of the opinion that the defendant was entitled to the evidence, as the plaintiff had made proof of the same character by a medical witness, who stated, that in his opinion, conception might follow the first intercourse with a man. This evidence opened the way for the inquiry which the court permitted the defendant to make upon the same subject.

We think the evidence as to the conversation between the defendant and his mother, in the absence of the plaintiff, soon after the time of the alleged assault, was also-competent, as plaintiff had given evidence as to the same interview, and no exception was taken to the ruling by the defendant.

After the defendant had made his case the plaintiff called a witness who testified that he knew the plaintiff, and he was then asked this question: “Do you know what her reputation was in the town where she lived?” To this question the defendant objected and the same was sustained, and the plaintiff excepted. The defendant then stated to the court that he should not claim to the jury, that the plaintiff’s character, according to the speech of people, was not good and should not attack her character, but that from her conduct and the circumstances proved, he should ask the jury whether or not it was not more likely that she gave way to her passion with him rather than Johnston should have done the act complained of. The plaintiff then offered testimony as to the general character of the plaintiff for the purpose of showing that she was a person of good, moral character and as tending to prove her character for chastity and morality; and as corroborated in the main facts in the case, and also for the purpose of rebutting the presumption which may have been raised against her, and as a bearing on her character for truth and veracity. This was objected to by the defendant’s counsel as inadmissible and incompetent, and that proof of her general reputation and character is not admissible as it was not attacked, and that he should not claim that it. had not been good in the neighborhood in which she lived; the objection was sustained and the plaintiff excepted.

These rulings present the question, was it competent for the plaintiff to sustain her case and character by proof of her general good character % The plaintiff’s general reputation for truth and veracity had not been attacked by the defendant by proof that her reputation in that respect was bad. The other point upon which the evidence was offered was embraced' within the issue, and involved the merits, and for that reason the same was properly rejected. Ford v. Jones, supra.

Here, the defendant stated in explicit terms, that the offer of proof was for the purpose of supporting the issue on the plaintiff’s part, by giving proof of her general good character as to chastity and virtue. This was not admissible by the rules of evidence, where an issue is raised on the trial collateral to the issues involving the merits, as, where a witness’s general character has been attacked by calling impeaching witnesses, or it appears by his own evidence, on cross-examination or otherwise, that he has lived an evil and immoral life, then the party calling him may sustain his general character for truth and veracity. People v. Rector, 19 Wend., 569 People v. Gay, 3 Seld., 378; People v. Hulse, 3 Hill, 309.

Had the defendant’s offer of prooffbeen limited for me purpose of proving that the plaintiff’s general character for truth and veracity was good, with a view of sustaining her as a witness in her own behalf, a different question would be presented. But as the evidence offered was not limited to that purpose, and the defendant expressly disclaimed all intention of attacking the plaintiff’s general character for truth and veracity, we are not called upon to examine the question. All the evidence given by theffefenclant tending to impeach the general character of the plaintiff for chastity related to the main issue, as we have attempted to show.

The plaintiff delayed disclosing to her female friends the conduct of the defendant until she became satisfied that she was with child, although she met her most intimate female friends the very day of the occurrence and under such circumstances, that she had a free opportunity to relate to them the outrage which she alleges that the defendant had perpetrated. Upon this evidence the court charged the jury, at the defendant’s request, in substance as follows: The fact that she did not disclose the assault within a reasonable time after an opportunity presented itself for her so to do, is in itself a reason for impeaching the veracity of her story.

Her silence, after a reasonable opportunity to expose the defendant’s conduct to her female relatives and friends, is a circumstance from which the jury might infer that her story was not reliable. If the plaintiff’s counsel claimed that the general rule as stated should have been qualified, in view of any of the facts and circumstances appearing in the case, he should have called the attention of the court to the same.

The part of the charge relative to the degree of resistance that the plaintiff was called upon to make, to defeat the villainous purpose of the defendant, was correct and in accordance with the rule laid down by the elementary writers and stated in the decisions of the courts of this state. People v. Dohring, 59 N. Y., 374.

Many other exceptions was taken to the rulings of the court upon the trial, but we fail to discover any error therein. Many other points were made and argued, but no exceptions were taken so as to bring up the question discussed.

The judgment should be affirmed.

Bradley, J.

(dissenting)—I am of the opinion that the plaintiff’s exception was well taken to the ruling which permitted the medical witness to answer the question: “Suppose a young lady of nineteen or twenty years, weighing 120 pounds, who had never had sexual intercourse with a man, should be seized and thrown upon the floor and ravished against her will and her resistance, state whether or not in your judgment from your reading and from experience, it would be probable that pregnancy would follow such an intercourse 1 ” That the opinion called for was conjectural and speculative in character and that no evidence had been given on the part of the plaintiff which waived her right to effectually take exception.

Smith, P. J., and Barker, J., for affirmance; Bradley, J., for reversal; Haight, J., not voting.  