Shartzer v. State

Robinson, J., delivered the opinion of the Court. The appellant was tried for committing a rape, and the main question on this appeal is whether the prosecutrix could be asked, whether she had previously had connection with another person, other than the prisoner ? The decisions on this question, it must he admitted, have not been uniform either in England, or in this country. Plausible reasons have been assigned, and adjudged ¹⁵⁰ cases are to be found, both for and against tbe admissibility of sucb evidence, and some Courts have gone so far, as to allow the prisoner to prove specific acts on the part of the prosecutrix.

At the argument I had, I must confess, some difficulty in regard to the matter, but upon further consideration, we are all of opinion, that the objection to the question was properly sustained by the Court. The accusation, it is true, necessarily involves the question of consent or no consent on the part of the prosecutrix,, but the mere fact that she may have had connection with another person, does not tend to prove that she gave consent to the prisoner. And this is the real question at issue before the jury. Besides, if the question can be’ asked as to one person, it may be asked as to another, and thus the whole history of the prosecutrix’s life might be gone into, and this too, without notice to her.

Instead of' the one issue, we should have a number of collateral issues, involving an inquiry into matters, as to which the prosecutrix might be wholly unprepared. • In Rex vs. Hodgson, Eng. Crown Cases, 1 Russ. & Ry., 211, the prisoner was tried for committing a rape, and his counsel proposed to ask the prosecutrix, “ whether she had not before had connection with other persons ? and whether she had not before had connection with a particular person named?” The objection to the question was sustained by Mr. Baron Wood, before whom, the case was tried, and the prisoner having been found guilty, the question was-reserved for the consideration of the Judges. It was first heard before eight Judges, but Mansfield, C. J., Macdonald, C. B., Grose, J., and Lawrence, J., being then absent, it was postponed for further consideration to the Hilary Term, when all the Judges being present, it was-again heard, and they were- all of opinion, that the question was inadmissible. Here then is a deliberate decision of the twelve Judges in England.

In the subsequent case, however, of Regina vs. Robins, 2 Moody & Robinson, 512, the prosecutrix having on cross- ¹⁵¹ examination denied that she had had connection with other than the prisoner, Coleridge, J., after consulting Erskine, J., decided that it was competent for the prisoner to prove the prosecutrix had had connection with the persons named, for the purpose of contradicting her. In the still later case of The Queen vs. Holmes & Furness, Law Rep., 1 Crown Cases Res., 304, the prosecutrix having on cross-examination denied that she had had connection with one Robert Sharp, the counsel for the prisoner offered to prove by Sharp, that he had had connection with her, but the prosecution objected to the question and the Court refused to admit the evidence. The prisoners were found guilty and the question was reserved for the decision of the Court for Crown Cases Reserved, consisting of Kelly, C. B., Byles, J., Pigott, B., Lush, J., and Hannen, J. The prosecutrix had denied having intercourse or connection with