People v. Benson

The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Terry concurred.

On the trial of this cause in the Court below, the defendant offered to prove that the prosecutrix, who was the only witness in the case, bad been guilty of certain acts of lewdness with other men.

In this class of cases, when the prosecutrix is the sole witness, and the accused is compelled to rely upon circumstantial evidence for his defence, any fact tending to the inference that there was not the utmost reluctance and resistance, is always received. That there was not an immediate disclosure; that there was no outcry, though aid was at hand and the prosecutrix knew it; that there was no indication of violence to the person ; that the act was committed at a time, and under circumstances calculated to raise a doubt as to the employment of force, are put as strong circumstances of defence, not as conclusive, but as throwing doubt upon the assumption, that there was a real absence of assent.

In 3 Greenleaf on Evidence, § 214, the rule is thus laid down: “ The character of the prosecutrix for chastity may also be impeached, but this may be done by general evidence of her reputation in that respect, and not by particular instances of her unchastity; nor can she be interrogated as to criminal connection with any other person except as to the previous intercourse with the prisoner himself, nor is such evidence of her previous intercourse admissible.”

[223]The rule thus laid down by the learned commentator, is doubtless derived from the cases of Rex v. Hodgson, and Rex v. Aspinwall. These, together with other English decisions upon the same subject, have been ably reviewed by Judge Cowen in the case of the People v. Abbot, 19 Wendell, 192, and the rule established, that preyious intercourse with other persons may be shown, as tending to disprove the allegation of force, and such evidence would seem to be highly proper, as it must be obvious to all that there would be less probability of resistance upon the part of one already debauched in mind and body, than there would be in the case of a pure and chaste female.

It is contended in this case, that evidence of general reputation is admissible, but not of particular acts, and even if the evidence had been admissible, the questions should have been first put to the prose- - cutrix. I cannot understand why, upon any sound rule, general repu- ■ tation should be preferred to particular facts. It is true, that it is said j the party comes prepared to prove her general character, and her attention; is not directed to the special facts. It appears to me that proof of partie- i ular acts of lewdness should be admitted in preference to general reputa-: tion, which may be good or bad, either deservedly or undeservedly, 'j Facts tend to make up the sum of reputation, and the cause, and not the J result, would be the safer testimony to rely on.