APPEAL from a judgment of the Superior Court of the County of Mohave. J. W. Faulkner, Judge. Judgment reversed and case remanded with instructions.
Mr. Joe Conway, Attorney General, and Mr. Albert M. Garcia, Assistant Attorney General, for Appellee.
Mr. E. Elmo Bollinger, for Appellant.
[59 Ariz. 49] LOCKWOOD, C.J.
Ed Wood, defendant, was accused by the county attorney of Mohave County of the crime of rape, committed by force and violence upon the person of one X. Both defendant and X agree that at the time and place stated in the information they did have sexual intercourse, the only material issue in dispute being whether it was with or without the consent of X. She testified definitely and specifically to the completed act and that it was committed against her resistance by force and violence on the part of defendant. The latter, and one Williams who was an eye-witness to the intercourse, testified that she fully and freely consented to the act.
On the cross-examination of X she was asked by defendant's counsel as to whether she had previously, [59 Ariz. 50] and within approximately a year's time, engaged in acts of illicit sexual intercourse with other men, specifying them. Objection was made to any questions of this nature, and all the objections were sustained by the court. Defendant offered then, on his own case in chief, to show many previous specific immoral and unchaste acts on the part of X. This evidence was also objected to and the objection sustained.
The first and the principal question upon the appeal is whether evidence of this nature is permissible in a case charging rape by force and violence. There is a wide divergence between the authorities upon this point. In perhaps the greater number of cases it is held that while the general reputation for chastity of a complaining witness may be shown, both as attacking the truth of her testimony and the question of whether she has consented to the intercourse, specific acts of unchastity are held to be inadmissible. The reason generally given in cases where the one class of evidence is admitted and the other is refused, is that the witness will be prepared to meet attacks on her general reputation, while she may be taken by surprise and not able to defend herself against specific charges.
The earlier cases are discussed and analyzed in People v. Abbot, 19 Wend. (N.Y.), 192, and therein the court held, after considering the reasoning pro and con, that when the issue is one of consent, evidence of specific instances of unchastity is admissible, but where the issue is one of truth and veracity, it is not.
The question has arisen frequently in California, and in People v. Johnson, 106 Cal. 289, 39 P. 622, 623, the supreme Court of that state said: [59 Ariz. 51]
"... This class of evidence is admissible for the purpose of tending to show the nonprobability of resistance upon the part of the prosecutrix; for it is certainly more probable that a woman who has done these things voluntarily in the past would be much more likely to consent than one whose past reputation was without blemish, and whose personal conduct could not truthfully be assailed...."
Later, in People v. Pantages, 212 Cal. 237, 297 P. 890, 901, the following language was used:
"The authorities in this state appear to fairly establish the rule that on a charge of rape of a female person under the age of eighteen years, where the act is alleged to have been accomplished with the consent of the victim of the assault, evidence of previous acts of unchastity is inadmissible for the sole purpose of attacking her character. [Citing cases]. But equally well established is the principle that where the defendant is charged with the crime of rape alleged to have been committed on the ...