Prejudicial error in excluding evidence of intercourse of prosecutrix with others, see APPEAL AND ERROR, § 768 f. XII. Relevancy and materiality. k. Similar acts or facts. a. Upon the question whether or not the fire on a yacht, for setting which, to prejudice the insurers, one is on trial, was set by him or was accidental, evidence is not admissible that within a few months a a. Evidence of other similar acts comfire had consumed another yacht and an mitted upon the prosecuting witness about automobile belonging to him, both of which the time of that upon which the indictment were largely overinsured, under circum- is founded is admissible in a prosecution stances tending to show that he caused for statutory rape. State v. Keeler, L.R.A. them. Fish v. United States, L.R.A.1915A, 1916E, 472, 52 Mont. 205, 156 Pac. 1080. 809, 215 Fed. 544, 132 C. C. A. 56. (Annotated) b. Upon trial for arson in which defendant is alleged to have consented to procure insurance on buildings, burn them, and collect the insurance, evidence is not admissible of a fire in his own building before the conspiracy existed, and which was not started by the one who started those under the alleged conspiracy, or shown to have been connected with the one for which the indictment was found. People v. Grutz, L.R.A.1915D, 229, 212 N. Y. 72, 105 N. E. 843. c. Evidence of fires which had taken place from time to time under agreement between two persons to get the property insured and one to set it on fire and the other collect the insurance and to share in the proceeds is not admissible upon a trial of an indictment for causing one of the fires, if each was a separate transaction, with no such relation between them in respect to time, place, or circumstances that the mere evidence of the origin of one would tend to prove the origin of another. People v. Grutz, L.R.A.1915D, 229, 212 N. Y. 72, 105 N. E. 843. § 1342. Other sexual offenses. In civil action, see ante, § 1333. a. Upon an issue of the right to a divorce for a specified act of adultery, evidence is immaterial as to other acts of a similar na ture. People v. Teal, 25 L.R.A. (N.S.) 120, 196 N. Y. 372, 89 N. E. 1086. b. Upon a trial for statutory rape, evidence is not admissible of a rape committed by accused upon a companion of the prose cuting witness immediatey after the offense for which he is on trial, both girls having been called into the office of accused at the same time, and the two crimes being committed while both were present. People v. Gibson, 48 L.R.A. (N.S.) 236, 255 Ill. 302, 99 N. E. 599. (Annotated) c. Evidence of acts of sexual intercourse between the prosecutrix and the defendant charged with statutory rape occurring subsequent, and related in time, to the acts upon which the prosecution is based, is admissible to show the intimate relation and familiarity of the parties, and in corroboration of the ultimate fact sought to be proved. Penn v. State. L.R.A.1917E. 668, 13 Okla. Crim. Rep. 367, 164 Pac. 992. d. Upon a prosecution for statutory "ape, evidence of subsequent acts of intercourse between prosecutrix and accused is admissible if they are so related by brevity of time, continuity of lewdness, or otherwise, to the principal act, as to justify the inference or indicate that the mutual disposition of the parties evidenced by them existed at the time of such act. People v. Thompson, L.R.A.1915D, 236, 212 N. Y. 249, 106 N. E. 78. e. In prosecutions for rape acts subsequent to the act charged in the indictment (as well as those prior to it) reasonably indicating a continuity of the lascivious disposition, are relevant, subject, however, to the rule that when the admissibility of evidence depends upon collateral facts, the regular course is for the trial judge to pass upon the facts in the first instance, and, the jury as to its purpose and effect, and then, if he admits the evidence, to instruct b. When the specific offense charged in the indictment involves illicit sexual intercourse by consent, subsequent offenses of like character between the parties may be relevant, because the extreme intimacy and the amorous inclination and willingness evidenced by its commission are a growth pre-opinion on the preliminary matter. People to exclude it if they should be of a different ceding the offense, and are rather nourished than annihilated by their exercise. People v. Thompson, L.R.A.1915D, 236, 212 N. Y. 249, 106 N. E. 78. 249, 106 N. E. 78. c. Upon trial of one for transporting women for purposes of prostitution, evidence is not admissible that he committed batteries on them which are not connected in any way with the charge for which he is on trial. Johnson v. United States, L.R.A. 1915A, 862, 215 Fed. 679, 131 C. C. A. 613. § 1343.-rape. C. To show intent or motive, see post, § 1349 k. v. Thompson, L.R.A.1915Ď, 236, 212 N. Y. f. Acts of sexual intercourse may always defendant upon a trial for common-law rape be proved between the prosecutrix and the prior to the alleged offense, for the purpose of raising an implication of consent. Lee v. State, L.R.A.1916B, 963, 132 Tenn. 655, 179 S. W. 145. it is error to receive evidence of a separate g. Upon trial of an indictment for rape and distinct offense of the same nature committed by the same defendant against the same prosecutrix at a time different from that upon which the offense charged in the indictment was committed. Parkinson v. People, 10 L.R.A. 91, 135 Ill. 401, 25 N. E. 764. XII. Relevancy and materiality. k. Similar acts or facts. h. That defendant abducted the woman the wife, and of his threats to take the life whom he subsequently married is not ad- of both the wife and the accused. Bailey v. missible on a prosecution for rape by means People, 45 L.R.A. (N.S.) 145, 54 Colo. 337, of a sham marriage ceremony. Lee v. State, 130 Pac. 832. 61 L.R.A. 904, 44 Tex. Crim. Rep. 354, 72 S. W. 1005. § 1344.- incest. 497, 123 S. W. 1129. To show intent or motive, see post, § 1349 1. Evidence in rebuttal, see post, § 1354 c. a. Upon a prosecution for incest, evidence of other acts of intercourse between the parties is not admissible. Skidmore v. State, 26 L.R.A. (N.S.) 466, 57 Tex. Crim. Rep. (Annotated) b. Where by statute each act of sexual intercourse between a father and a daughter is a separate offense, evidence of prior or subsequent acts is not admissible in support of an indictment charging one specific act. Pridemore v. State, 29 L.R.A. (N.S.) 858, 59 Tex. Crim. Rep. 563, 129 S. W. 1112. e. In the trial of sexual crimes with consent, including incest, other and similar adulterous or licentious acts or conduct by the defendant toward the prosecutrix, whether prior or subsequent to the date of the specific act charged in the indictment, are, if not too remote, admissible for the purpose of showing the adulterous or incestuous disposition of the defendant toward the prosecutrix, and the illicit and continuous sexual relations existing between them. State v. Reineke, L.R.A.1915A, 138, 89 Ohio St. 390, 106 N. E. 52. (Annotated) § 1345. - crime against nature. a. Evidence of the commission of similar crimes at other times is not admissible against one on trial for commission of a crime against nature. State v. Start, 46 L.R.A. (N.S.) 266, 65 Or. 178, 132 Pac. 512. (Annotated) b. Upon prosecution for an assault with attempt to commit sodomy, evidence is admissible of an attempt by accused to commit a similar act upon another person present at the time, immediately after making the attempt for which he is on trial. State v. McDowell, 32 L.R.A. (N.S.) 414, 61 Wash. 398, 112 Pac. 521. § 1346. In prosecution for homicide. Declaration of other victim of homicide by poison, see ante, § 1063 g. To show intent, animus or motive, see post, § 1349 i, j. Evidence in explanation, see post, § 1354 h. a. Evidence of occurrences the day of, but some hours before, a fatal affray, is admissible in a prosecution for murder on the question of self-defense, where they were a part of the occurrences that culminated in the killing, and tend to enlighten the jury as to the mental attitude of the men toward each other at the time of the affray. People v. Hecker, 30 L.R.A. 403, 109 Cal. 451, 42 Pac. 307. b. Upon trial of a man for killing his brother-in-law to prevent the latter's entering his home in search of the wife of the brother-in-law, evidence is admissible of assaults which the husband had made on c. On a trial for murder, evidence that before leaving the premises of deceased, and about half an hour after the killing, the defendant committed rape upon the wife of the deceased, is inadmissible, where no apparent connection is shown between the two Ill. 521, 21 N. E. 821. crimes. Farris v. People, 4 L.R.A. 582, 129 d. In the prosecution of a parent for manslaughter for failure to obtain medical aid frozen feet, the admission of evidence showfor a child of tender years, suffering with ing the existence of bruises, scars, and marks on the body of the child is not error, where the jury were instructed that such evidence should ony be considered in determining whether the defendant's attitude toward the child was such as might cause him to be negligent in his failure to secure medical aid after he had ascertained the child's condition. Stehr v. State, 45 L.R.A. (N.S.) 559, 92 Neb. 755, 94 Neb. 151, 139 N. W 676, 142 N. W. 670. § 1347. other homicides. Evidence of proposition to commit similar homicide, see ante, § 1300 h. To show intent, animus or motive, see post, § 1349 j. a. The exception to the rule that evidence of one crime is not admissible to prove another, which permits such proof in case of a common plan or scheme, will not permit the admission, upon a trial for murder by poison, of evidence of the commission of another similar crime, where one occurred several weeks later than the other, and one was induced by jealousy caused by interference in a love affair, and the other by hatred resulting from quarrels over the management of an athletic club; and it is immaterial that at different times accused was carrying on correspondence under the names of those against whom the murders were planned, where the correspondence under neither name had any reference to the other person, and the only similarity was in the correspondence and the results obtained, with nothing to show that the result in one case had any connection with the other. People v. Molineux, 62 L.R.A. 193, 168 N. (Annotated) Y. 264, 61 N. E. 286. b. The exception permitting evidence of other crimes to prove the identity of one on trial for murder does not justify proof of the commission of another murder by similar means, whose perpetrator is not shown, merely because accused had the requisite knowledge and opportunity to concoct the poison with which both crimes were committed, which is a rare one, where he is not the only person who possessed such knowledge and opportunity. People v. Molineux, 62 L.R.A. 193, 168 N. Y. 264, 61 N. E. 286. (Annotated) c. Evidence of the commission of another similar crime is not admissible against one accused of murder, as tending to establish XII. Relevancy and materiality. k. Similar acts or facts. the identity of accused, merely because he 8 1348. Miscellaneous offenses. See also ante, § 1310 g. a. Evidence is admissible, upon a prosecution for violation of an ordinance prohibiting water mains in the street to be left in a leaky condition, showing the condition of the street prior to the time of the institution of the proceedings. Crumpler v. Vicksburg, 11 L.R.A. (N.S.) 476, 89 Miss. 214, 42 So. 673. b. An objection to evidence of the obstruction of a street on different days, where the indictment charges an obstruction on one day only, cannot be sustained, although defendant might compel the prosecution to elect upon which act or offense a verdict would be claimed. State v. Chicago, M. & St. P. R. Co. 4 L.R.A. 298, 77 Iowa, 442, 42 N. W. 365. e. In prosecuting a foreign corporation for violations of a state statute regulating intrastate commerce, evidence as to prior but wholly independent contracts and transactions between the plaintiff and defendant or third parties, claimed to have been violations of the statute, is irrelevant. Sucker State Drill Co. v. Wirtz, 18 L.R.A. (N.S.) 134, 17 N. D. 313, 115 N. W. 844. f. Upon a prosecution for permitting a female to remain in or about a saloon, evidence is admissible that while she was there the defendant sold her beer, as tending to show that he was engaged in the sale of intoxicating liquor, and permitted her to remain in the saloon. State v. Baker, 13 L.R.A. (N.S.) 1040, 50 Or. 381, 92 Pac. 1076. § 1349. To show intent, animus, or See also ante, §§ 1334 i, r, s, 1340 d. motive. a. Where separate and distinct offenses are sought to be shown by the state as hav ing some relation to the offense on trial, showing motive, scienter and the like, testimony tending to prove the offense charged is not rendered incompetent by reason of the, fact that it also tends to prove such separate and distinct offenses and this rule of competency is also applicable when such other offenses are the result of a common scheme or plan embracing the commission of two or more crimes, including the crime charged and which are so related to each other that proof of one tends to establish the others. Patterson v. State, L.R.A. 1918A, 583, 96 Ohio St. 90, 117 N. E. 169. b. The remoteness in time of the commission of a collateral crime claimed to have furnished the motive for the crime for which the defendant is on trial does not render evidence thereof inadmissible. State v. Pancoast, 35 L.R.A. 518, 5 N. D. 516, 67 N. W. 1052. c. Evidence of the commission by the accused of another and collateral crime is admissible, where such crime furnishes a motive for the commission of the crime for which he is on trial. State v. Pancoast, 35 L.R.A. 518, 5 N. D. 516, 67 N. W. 1052. d. While it is not competent for the state, in making out its case in chief, to introduce evidence of other and prior crimes, for the purpose of supporting the charge made in the indictment, or of reflecting on the charC. In support of an indictment against acter of the accused, yet the commission of an overseer of the poor for drawing from a prior crime may be shown for the purpose the county pay for transportation of pau- of furnishing a motive for the commission pers which he never furnished, evidence is of the crime charged in the indictment, proadmissible of other instances when he did vided such prior crime is so related to the the same thing, as tending to show the bad latter as to have a logical connection therefaith of defendant and that the offense with, and reasonably to disclose a motive charged was part of a scheme to rob the for its commission. State v. Dickerson, 13 county. State v. Brady, 36 L.R.A. 693, 100 L.R.A. (N.S.) 341, 77 Ohio St. 34, 82 N. E. Iowa, 191, 69 N. W. 290. (Annotated) | 969. d. Upon trial of an indictment for conspiracy to induce a shipper to receive rebates in violation of the "Elkins law." evidence is admissible of similar dealings with other merchants. Thomas v. United States, e. Evidence of other acts and dealings of an accused, of a kindred character to those charged, and performed at or about the same time, is admissible, in any case involving fraudulent intent, to establish the XII. Relevancy and materiality. k. Similar acts or facts. intent with which the particular act in Reopening case for purpose of, see TRIAL, Thomas v. United question was done. States, 17 L.R.A. (N.S.) 720, 156 Fed. 897, 84 C. C. A. 487. f. That one on trial for obtaining money by false pretenses had made similar false representations and pretenses to others is admissible to show his knowledge of the falsity of the representations made to the prosecuting witness, and his guilty intent in making them. State v. Briggs, 7 L.R.A. (N.S.) 278, 74 Kan. 377, 86 Pac. 447. g. To show intent of one who obtained money on a bad check, evidence is admissible of other similar transactions by him at about the time the alleged offense was committed. State v. Foxton, 52 L.R.A. (N.S.) 919, 166 Iowa, 181, 147 N. W. 347. h. Upon trial of a prosecution for giving a check in payment of goods with knowledge of absence of funds or credit to meet it, with intent to defraud, evidence is admissible of similar transactions on the same or previous day as tending to show defendant's knowledge of the state of his account, as well as guilty knowledge and intent to deceive. People v. Bercovitz, 43 L.R.A. (N.S.) 667, 163 Cal. 636, 126 Pac. 479. (Annotated) i. To show the animus probably existing between a murderer and his victim, evidence is admissible of quarrels months before the homicide. State v. Brooks, 17 L.R.A. (N.S.) 483, 79 S. C. 144, 60 S. E. 518. j. Proof of intent to commit a murder by poison, which conclusively appears from the attending circumstances, cannot be aided by evidence of another murder committed by similar means, but for a different cause. People v. Molineux, 62 L.R.A. 193, 168 N. Y. 264, 61 N. E. 286. (Annotated) k. Upon a prosecution for rape alleged to have been committed by means of a sham marriage, evidence of marriage of defendant to another woman a few months later may be considered by the jury in passing upon the intention, purpose, and motive of defendant with regard to the ceremony through which he procured the consent of the prosecuting witness to sexual intercourse. Lee v. State, 61 L.R.A. 904, 44 Tex. Crim. Rep. 354, 72 S. W. 1005. 1. Upon trial of a prosecution for incest in which the state relies upon a single act, evidence is not admissible of conduct at subsequent times tending to show a crim. inal intent. Gross v. State, 33 L.R.A. (N.S.) 477, 61 Tex. Crim. Rep. 176, 135 S. W. 373. 1. Explanation and rebuttal. § 1350. Generally. $23. Re-examination of witnesses generally, see Recross-examination of witnesses generally, Admissibility to impeach or corroborate witness, see WITNESSES, IV. See also ante, § 1215 d; PARTNERSHIP, 45 a; WORDS AND PHRASES, 3660. a. Where a witness in a condemnation proceeding testifies on behalf of the landowner, that the land sought to be taken is of a certain value, it is not error for the witness to be allowed thereafter to explain that he bases his estimate upon the fact that the land could be subdivided into town lots, and would for such purpose sell for the amount fixed by him as the value of the property. Idaho & W. R. Co. v. Columbia Conference of Evangelical Lutheran Augustana Synod, 38 L.R.A. (N.S.) 497, 20 Idaho, 568, 119 Pac. 60. b. Upon garnishee disclosure, the executor of an estate may introduce testimony and evidence other than his own, for the purpose of corroboration and explanation by developing facts additional to those disclosed by him, and for the purpose of showing that money and effects under his control as executor do not in fact belong to the judgment debtor. Pitzl v. Winter, 5 L.R.A. (N.S.) 1009, 96 Minn. 499, 105 N. W. 673. c. In an action for personal injuries, where plaintiff testified to previous know!edge of a defect in a street which caused her injury, and frankly said that if she had been thinking of the defect she would not have been injured, it is incompetent for her attorney to explain away such testimony by proof of a witness's conversation with her after she had testified, in which conversation she could not remember, according to the witness, what she had testified to. Dundas v. Lansing, 5 L.R.A. 143, 75 Mich. 499, 42 N. W. 1011. § 1351. Of evidence offered by ad- As to defendant's pecuniary circumstances, tradict witness, see WITNESSES. IV. a. The introduction of irrelevant evidence upon one side without objection does not justify the introduction of irrelevant San Diego evidence upon the other side. Land & Town Co. v. Neale, 3 L.R.A. 83, 78 Cal. 63, 20 Pac. 380, later appeal in 11 L.R.A. 604, 88 Cal. 50, 25 Pac. 977. b. Volunteered statements of a witness as to the effect of blasting on his own building, in reply to questions as to noises, in Conversation occurring in absence of de- an action for damages for injuries to a fendant, see ante, § 1041 b. Proof of negative, see post. § 1360. Prejudicial error as to, see APPEAL AND Order of admitting proof generally, ROR, §§ 774, 802. TRIAL, §§ 18-22. ER see building by blasting, of which all irrelevant parts to which the attention of the court is called are stricken out, furnish no reason for the admission of testimony of other property owners that the blasting did not affect their buildings. Fitzsimons & C. Co. XII. Relevancy and materiality. 1. Explanation and rebuttal. v. Braun & Fitts, 59 L.R.A. 421, 199 Ill. 390, Co. 63 L.R.A. 827, 133 N. C. 335, 45 S. E. 65 N. E. 249. c. The mere fact that a witness goes beyond the purport of a question asked him does not open up the issues for testimony of like character by the adversary. Seattle v. Smythe, L.R.A.1918A, 228, 97 Wash. 351, 166 Pac. 1150. 658. k. Evidence of an agreement to compound a prosecution for felony is not inadmissible because the agreement is void, when offered to contradict a party who has denied that there was such an agreement. Kramer v. Kister, 44 L.R.A. 432, 187 Pa. 227, 40 Atl. 1008. § 1352. - libel and slander cases. a. Evidence of reports similar to the statement made by defendant in a slander d. To meet evidence that defendant had asked for figures for improvements made on his property according to an exhibited sketch, evidence is admissible that the sketch was made at the instance of his ten-suit is not admissible to rebut malice by ant, who is claimed to have undertaken to make the improvements at his own expense. Walter v. Sperry, 44 L.R.A. (N.S.) 28, 86 Conn. 474, 85 Atl. 739. e. A plaintiff in an action for damages for a nuisance maintained by a city may, in case the city asks his witness if he has a suit for the same cause pending, show that the suit was settled, to repel the idea of interest in the witness. Louisville v. Hehemann, L.R.A.1915C, 747, 161 Ky. 523, 171 S. W. 165. showing that defendant had reason to believe that the statements were true. Pattangall v. Mooers, L.R.A.1918E, 14, 113 Me. 412, 94 Atl. 561. b. One suing for slander in being charged by another with setting fire to his building cannot be permitted to testify that he never made threats to burn the building for the purpose of contradicting witnesses who have testified that they communicated to defendant, before the fire, the fact that they had heard plaintiff make such threats. Edawards v. Kevil, 28 L.R.A. (N.S.) 551, 133 Ky. 392, 118 S. W. 273. f. Evidence offered in opposition to plea of estoppel by a prior judgment, which shows that in the former litigation the parties alleged to be estopped by the judgment therein sought so to amend their pleading as to have the question in controversy in the subsequent litigation determined, and that the court disallowed such amendment, is admissible. Draper v. Medlock, 69 L.R.A. 483, 122 Ga. 234, 50 S. E. 113. g. In an action by a guest to hold the driver of an automobile liable for injury caused by his attempting to drive across a railroad track in front of an approaching train, evidence of the timing of trains at that crossing is not admissible to contradict the opinion of the engineer in charge of the train as to the speed at which he crossed the highway at the time of the accident. Avery v. Thompson, L.R.A.1918D, 205, 117 Me. 120, 103 Atl. 4. h. Defendant in an action for damages for killing a person may contradict witnesses who testify as to his first statement to another person, upon the latter's arrival upon the scene of the homicide, and state what the conversation was, and it is immaterial that the witnesses differ as to where he was located at the time of the conversation, if all agree that the conversa tion referred to by all parties was the same. Foster v. Shepherd, 45 L.R.A. (N.S.) 167, 258 Ill. 164, 101 N. E. 411. i. Where one charged with fraud in the New York customhouse admits that sugar was valued there lower than in Boston, and claims that the Boston polariscope gives too high a valuation, evidence that it does not is admissible. Burt v. Advertiser Newspaper Co. 13 L.R.A. 97, 154 Mass. 238, 28 N. E. 1. j. If a carrier attempts to excuse delay in transporting freight by the existence of a strike among employees at a terminal, the shipper may show the means taken by other carriers to avoid the effects of the strike. Parker v. Atlantic Coast Line R. c. In an action for libel by a physician against a board of health, testimony having been given for the defendants that a physician having due regard to the health and life of his patient should not attend an obstetrical case while attending a case of diphtheria, unless imperative necessity demands it, the plaintiff should be allowed to show in rebuttal by other testimony that a physician might, with due regard to the health and life of an obstetric patient, treat her while attending a case of diphtheria, by properly disinfecting himself, and that such practice is eminently proper. Mauk v. Brundage, 62 L.R.A. 477, 68 Ohio St. 89, 67 N. E. 152. -insurance cases. § 1353. Prejudicial error as to, see APPEAL AND ERROR, § 774 b. Recalling witness for purpose of, see WITNESSES, § 53 e. a. In an action on a policy of insurance, where the insurer relies on a condition subsequent incorporated in the policy, to defeat the right of the insured to recover after loss, the plaintiff has a right to introduce evidence to rebut any proof of breach of condition so pleaded, or to show a waiver of the condition by the insurer. Allen v. Phoenix Assur. Co. 8 L.R.A. (N.S.) 903, 12 Idaho, 653, 88 Pac. 245. b. Where the defendant in a suit on an insurance policy sets up a special defense, and offers evidence to support it, after plaintiff has shown his loss and the cause that occasioned it and rested, plaintiff may rebut by offering affirmative evidence to meet that introduced in support of the special defense. Louisville Underwriters v. Durland, 7 L.R.A. 399, 123 Ind. 544, 24 N. E. 221. c. Evidence of persons present when a physician interviewed the holder of an ac cident insurance policy about a malady |