Bellows, J.
The first objection is to the testimony of Mrs. Phil-brick, that she had been very lame for three or four years, and stating the cause of it, and that she had ever since doctored for it.
The ground of the objection is not stated, but if, as would ordinarily be assumed, it was the general one that evidence of her physical condition was not admissible, we think it cannot be sustained, as it might be very material to show that by reason of infirmity she was unable to make resistance.
The objection insisted on in the argument is to the evidence that she had doctored for the infirmity ever since the birth of her son, but apart from the probable immateriality of the evidence there is nothing to show that this was specially excepted to at the time.
The same remarks may be made in respect to the testimony of Mrs. Pillsbury, which was of a similar character; and besides we think her testimony as to Mrs. Philbrick having made complaints was competent.
The testimony of Glazier and others, as to the exhibition of strength by respondent in his encounters with others, we think was admissible. It is true that the strength put forth on those occasions was not capable of exact measurement, as in the case of raising a known weight; but it might nevertheless afford better means of judging of his capacity of overcoming such resistance as the prosecutrix might have offered, especially, when the size and strength of the persons with whom he struggled was shown.
Of course, such testimony would not show respondent’s exact strength, Tout it might tend legitimately to show that he possessed ordinary, or more than ordinary strength; and the court could not say that to make out either would not be material.
How far back the parties should be allowed to go in the introduction of such testimony is within the discretion of the judge who tries the cause: Wason v. Sanborn, Rockingham County; and in this instance we see no objection to the manner of its exercise.
The testimony of Gale to the statements of Deacon Berry, as to having had sexual intercourse with Mrs. Philbrick, was properly excluded, as it was merely 'an attempt to contradict the witness Berry upon an immaterial point, viz : that the prosecutrix had been guilty of an act of unehastity with him. State v. Forshner, 43 N. H. 89. In Forsh[155]*155ner’s case the question did not directly arise, but in the subsequent case of State v. Abbott, in Merrimack County, not yet reported, it was directly raised and settled in same way. 3 Greenl. Ev. sec. 214, and notes. For the same reason the testimony of Hodgdon and others was properly excluded.
The next exception is, that Mrs. Philbrick was permitted to state that she first informed her mother of the violence inflicted upon her, a week or ten days after the event, and to give reasons for her delay.
The grounds upon which is received the proof of complaints by the prosecutrix, made soon after the injury, are that they are corroborative of her testimony on the stand, and tend to repel the presumption that would arise from the absence of such complaints; for it is laid down, very generally, that if such complaints are not made soon, or within a reasonable time after the injury, or without any inconsistent delay, it is a strong though not conclusive presumption against the truth of the charge.
It is equally well settled, also, that the delay to make complaint may be explained by showing that it was caused by threats, or undue influence of the prisoner. It is, in truth, a question purely of fact to be determined by the jury; and how much the delay in making complaint ought to weigh against the prosecution must depend upon the circumstances of each particular case.
■ It would then clearly be proper to show the reasons of such delay; whether caused by the threats of the prisoner, inability caused by the violence, want of opportunity, or the fear of injury by the communicartion to the only persons at hand; otherwise a strong inference against the truth of the charge might be made, when upon a disclosure of all the circumstances the jury might properly find that the delay was neither unreasonable nor inconsistent with the testimony of the prosecutrix.
This point has been argued by the counsel for the respondent, as if the test of the competency of the evidence was, whether it was part of the res gestee; but we think the views already suggested show that it is not received upon that ground in any case, but as affecting the credibility of the prosecutrix’s testimony; and it has accordingly been held that where she is not sworn, such proof cannot be admitted. 3 Greenl. Ev. sec. 213, and cases cited; People v. McGee, 1 Denio, 19.
So also in all cases the evidence of complaints made after the injury, is confined to the mere statement of the fact of the complaint, without giving the particulars, or even the name of the perpetrator of the crime, which is wholly inconsistent with the idea that the evidence is admitted as part of the res gestee.
The general views we entertain are recognized by Hawk. P. C. 176; 1 East’s Crown Law. 447; 4 Blk. Com. 213; Wharton Cr. Law, 440; Roscoe’s Cr. Ev. 862; 3 Greenl. Ev. 212; Regina v. Osborne, 1 Carr. & Marshman, 622; State v. De Wolf, 8 Conn. 99; 3 Starkie Ev. 1267.
In the case now before us the court could not say that the reason assigned for not communicating the fact of the injury to her parents, would [156]*156not properly tend to repel the presumption arising from the delay, and we therefore think it was rightfully received.
It would stand, indeed, upon the same ground as the admission of evidence to account for one’s silence when that silence would operate against him. U. S. v. Craig, 4 Wash. C. C. Rep. 729.
The testimony of Deacon Berry, that Mrs. Philbrick requestedhim to remain with her until her father returned, appears to have been received without objection, and we think, therefore, that his statement of the manner of making the request, whether in earnest or not, was properly received, the objection not being to receiving the statement of the request, but whether it was in jest or earnest.
We think the evidence of his previous solicitations were properly admitted. It is true that the instances were somewhat remote in point of time, being at least more than six months before the act charged; but we think they were not beyond the limits within winch the judge might exercise his discretion.
The evidence was admissible as tending to show the existence of a motive or passion that would render the commission of the act charged more probable.
Upon this ground, proof of previous improper familiarities between the-parties was held competent upon the trial of indictments for adultery. State v. Wallace, 9 N. H. 515; State v. Marvin, 35 N. H. 22; Commonwealth v. Merriam, 14 Pick. 518.
The principle of these cases, we think, must govern the one before us, that is, the solicitations of the respondent evince a state of mind that renders the act charged more probable.
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Bellows, J.
The first objection is to the testimony of Mrs. Phil-brick, that she had been very lame for three or four years, and stating the cause of it, and that she had ever since doctored for it.
The ground of the objection is not stated, but if, as would ordinarily be assumed, it was the general one that evidence of her physical condition was not admissible, we think it cannot be sustained, as it might be very material to show that by reason of infirmity she was unable to make resistance.
The objection insisted on in the argument is to the evidence that she had doctored for the infirmity ever since the birth of her son, but apart from the probable immateriality of the evidence there is nothing to show that this was specially excepted to at the time.
The same remarks may be made in respect to the testimony of Mrs. Pillsbury, which was of a similar character; and besides we think her testimony as to Mrs. Philbrick having made complaints was competent.
The testimony of Glazier and others, as to the exhibition of strength by respondent in his encounters with others, we think was admissible. It is true that the strength put forth on those occasions was not capable of exact measurement, as in the case of raising a known weight; but it might nevertheless afford better means of judging of his capacity of overcoming such resistance as the prosecutrix might have offered, especially, when the size and strength of the persons with whom he struggled was shown.
Of course, such testimony would not show respondent’s exact strength, Tout it might tend legitimately to show that he possessed ordinary, or more than ordinary strength; and the court could not say that to make out either would not be material.
How far back the parties should be allowed to go in the introduction of such testimony is within the discretion of the judge who tries the cause: Wason v. Sanborn, Rockingham County; and in this instance we see no objection to the manner of its exercise.
The testimony of Gale to the statements of Deacon Berry, as to having had sexual intercourse with Mrs. Philbrick, was properly excluded, as it was merely 'an attempt to contradict the witness Berry upon an immaterial point, viz : that the prosecutrix had been guilty of an act of unehastity with him. State v. Forshner, 43 N. H. 89. In Forsh[155]*155ner’s case the question did not directly arise, but in the subsequent case of State v. Abbott, in Merrimack County, not yet reported, it was directly raised and settled in same way. 3 Greenl. Ev. sec. 214, and notes. For the same reason the testimony of Hodgdon and others was properly excluded.
The next exception is, that Mrs. Philbrick was permitted to state that she first informed her mother of the violence inflicted upon her, a week or ten days after the event, and to give reasons for her delay.
The grounds upon which is received the proof of complaints by the prosecutrix, made soon after the injury, are that they are corroborative of her testimony on the stand, and tend to repel the presumption that would arise from the absence of such complaints; for it is laid down, very generally, that if such complaints are not made soon, or within a reasonable time after the injury, or without any inconsistent delay, it is a strong though not conclusive presumption against the truth of the charge.
It is equally well settled, also, that the delay to make complaint may be explained by showing that it was caused by threats, or undue influence of the prisoner. It is, in truth, a question purely of fact to be determined by the jury; and how much the delay in making complaint ought to weigh against the prosecution must depend upon the circumstances of each particular case.
■ It would then clearly be proper to show the reasons of such delay; whether caused by the threats of the prisoner, inability caused by the violence, want of opportunity, or the fear of injury by the communicartion to the only persons at hand; otherwise a strong inference against the truth of the charge might be made, when upon a disclosure of all the circumstances the jury might properly find that the delay was neither unreasonable nor inconsistent with the testimony of the prosecutrix.
This point has been argued by the counsel for the respondent, as if the test of the competency of the evidence was, whether it was part of the res gestee; but we think the views already suggested show that it is not received upon that ground in any case, but as affecting the credibility of the prosecutrix’s testimony; and it has accordingly been held that where she is not sworn, such proof cannot be admitted. 3 Greenl. Ev. sec. 213, and cases cited; People v. McGee, 1 Denio, 19.
So also in all cases the evidence of complaints made after the injury, is confined to the mere statement of the fact of the complaint, without giving the particulars, or even the name of the perpetrator of the crime, which is wholly inconsistent with the idea that the evidence is admitted as part of the res gestee.
The general views we entertain are recognized by Hawk. P. C. 176; 1 East’s Crown Law. 447; 4 Blk. Com. 213; Wharton Cr. Law, 440; Roscoe’s Cr. Ev. 862; 3 Greenl. Ev. 212; Regina v. Osborne, 1 Carr. & Marshman, 622; State v. De Wolf, 8 Conn. 99; 3 Starkie Ev. 1267.
In the case now before us the court could not say that the reason assigned for not communicating the fact of the injury to her parents, would [156]*156not properly tend to repel the presumption arising from the delay, and we therefore think it was rightfully received.
It would stand, indeed, upon the same ground as the admission of evidence to account for one’s silence when that silence would operate against him. U. S. v. Craig, 4 Wash. C. C. Rep. 729.
The testimony of Deacon Berry, that Mrs. Philbrick requestedhim to remain with her until her father returned, appears to have been received without objection, and we think, therefore, that his statement of the manner of making the request, whether in earnest or not, was properly received, the objection not being to receiving the statement of the request, but whether it was in jest or earnest.
We think the evidence of his previous solicitations were properly admitted. It is true that the instances were somewhat remote in point of time, being at least more than six months before the act charged; but we think they were not beyond the limits within winch the judge might exercise his discretion.
The evidence was admissible as tending to show the existence of a motive or passion that would render the commission of the act charged more probable.
Upon this ground, proof of previous improper familiarities between the-parties was held competent upon the trial of indictments for adultery. State v. Wallace, 9 N. H. 515; State v. Marvin, 35 N. H. 22; Commonwealth v. Merriam, 14 Pick. 518.
The principle of these cases, we think, must govern the one before us, that is, the solicitations of the respondent evince a state of mind that renders the act charged more probable. It is true that it does not necessarily evince a disposition to accomplish his object by force; but it tends to show that all other restraints had been thrown off, and that a lustful intent towards the prosecutrix existed in the heart of the prisoner which would render the commission of the crime more probable. 1 Greenl. Ev. 9th ed. sec. 53, note 1, and cases cited; among them is Cook v. Moore, 11 Cush. 216-17, where an intent to conceal property was admitted to prove a fraudulent intent under the bankruptlaw, though not in existence at the time of the intent shown. Roscoe Ev. 95.
Where it becomes material to show a guilty intent or knowledge, or a motive for the commission of the offence, evidence of this sort is constantly admitted: Roscoe’s Cr. Evi. 90, 96; 3 Greenl. Ev. sec. 15, and notes; nor is it confined to the proof of an intent to commit the particular offence charged; but evidence of malice and former hostility may be received, although the act which indicates -it may not point directly to the offence charged.
So, on the trial of an indictment for altering'counterfeited bank notes, evidence of the previous utterance of others is admissible, though not of the same kind. Roscoe’s Cr. Ev. 90, 96, and 3 Greenl. Ev. cited above.
So, on an indictment for treason, where the respondent had enlisted under the enemy, proof was admitted that he had attempted to prevail on another person to enlist, as evidence of the intent: Malin’s Case, 1 Dallas, 33; and also that on a previous occasion, he had come among a [157]*157body of his own countrymen, supposing them, by mistake, to be the enemy’s troops. Ibid.
Where the question was, whether a conveyance was fraudulent in respect to creditors, proof was ádmitted of other fraudulent conveyances about the same time. Whittier v. Varney, 10 N. H. 294.
So, also, where the question was, whether, a purchase of goods was procured by fraudulent pretences, proof of other purchases about the same time by similar pretences was admitted. Bradley v. Obear, 10 N. H. 477.
The case of Williams v. The State, 8 Humph. 585, cited 9 U. S. Dig. 42, sec. 37, is to the effect that on the trial of an indictment for an assault with intent to commit a rape, evidence of previous assaults on the prosecutrix are admissible to show the intent of the assault in question.
We have been referred by defendant’s counsel to the case of Rex v. Lloyd, 7 C. & P. 318; but the decision appears to have been at nisi prizes, and no reasons assigned for it, that would justify us in departing from the principle of our own decisions.
As to the instructions upon the effect of the evidence of character, we see nothing of which the respondent can justly complain, for it is quite clear that its effect must depend in some degree upon the nature of the offence charged, and the character and directness of the proofs brought to sustain it.
So far as the directions went, we see no cause for exception, and if the respondent had desired further instructions, to meet the views suggested as those of Judge Shaw, he should have asked for them.
The defendant having inquired of his witnesses as to his reputation for morality as well as chastity, and having received a favorable answer, we think that, on cross examination, the State was properly allowed to test their accuracy by inquiries as to his reputation for selling liquor in violation of the law; for the court surely cannot say that such acts are not immoral.
In regard to the instructions of the court that the jury should retire, not with any feelings that they would have the verdict one way or the other, but with a determination to consider and weigh the evidence, and then first of all to agree, and, second, to agree right, it will readily be conceded that it was erroneous if it was meant that it was more important that the jury should agree than that they should agree right. This, however, could not have been intended by the judge; but as the verdict is to be set aside on other grounds, it is unnecessary to examine it further.
There is,also, amotion to set aside the verdict, upon the ground that the New which was had was so conducted that the jury were misled and the respondent injured; and the evidence offered by the respondent is designed to prove that the condition of the fence between the door of Perkins’ house and the spot, where certain witnesses of respondent were supposed to stand when making' observations to which they testified, had been changed by agents of the State a short time before the view, by replacing the top board of that fence, which at the time of the alleged of-[158]*158fence was off; that the effect of this change was such that, whereas those witnesses, at the time to which their testimony relates, could, in the then condition of the fence, distinctly see a man at the door of said Perkins’ house, yet by replacing the board in question, the view of that door was wholly obstructed, and thereby the jury were misled, and induced to discredit entirely the testimony of these witnesses upon a point material to the defence, and the respondent contends that the board was improperly so replaced, and with the purpose of influencing the jury in the manner stated.
On the other hand, the State’s counsel urges that the board was replaced a short time before the view, without any reference to it whatever, and by one not acting for the State, but acting in perfect good faith, and merely to restore the board to the place from which it had been removed but a day or two before, and which it was in at the time of the alleged offence; and the State’s counsel also contends that the jury could not have been misled, because a man at said Perkins’ door could not be seen from the spot indicated, whether the board was off or on.
The evidence upon these points was very conflicting, but upon a careful analysis and consideration of it, we think the weight of the evidence to be: — That, with the board off, a person, standing at or near the spot described, could see a man standing on the door-stone in front of the east half of the door, that is, could see about one-half of his person, and that such a position upon the door-stone would not be unusual or unnatural in one seeking entrance; but that, with the board on, he could not see him at all, without stooping to look between the two boards, and, therefore, it might well be considered that in the position of these witnesses, with the board on, the man could not be seen at all by them; and al'so, that, on Sunday, May 4th, two days before the view on Tuesday, the board was found off by Isaac Merrill, who was summoned and attended as a witness for the State, but not examined, and who was shown to have made admeasurements and examinations in relation to this subject, and that he then replaced it in the condition it was at the time of the view; and it may be observed that the fact of the board being so replaced at that time by Mr. Merrill is not in controversy between the parties; but the question is, whether the board was off on the 16th December, 1861, and so remained during the winter, or whether it had been recently removed, when replaced by Mr. Merrill. Before it was so replaced, these witnesses had testified, and their testimony that they saw Knapp at the door and that he did not enter at all had caused a good many persons to examine the place; and Mr. Merrill states that, at the time he righted up the fence, he thought, as many persons would be looking there, he would put the board on, that it might-look as it formerly did; and we think it is fair to presume, he was aware of the bearing its restoration might have, although he testifies that he did not then know that a view was to be had.
Under these circumstances, it is much to be regretted that both parties had not been notified of what he had done, before or at the time of the view, that the jury might have made their observations with the board off as well as on, and then have received evidence as to its actual con[159]*159dition on the day of the alleged offence; especially, as Merrill was on the ground assisting Stevens in making observations and measurements for the State on the morning of the day when the view was had.
It is clear, we think, that perfect good faith required such notice, even if there was strong reason to believe that the board was but recently knocked off; and nothing short of an absolute certainty, at least, would excuse the omission. Even then, so important is it to avoid every appearance of unfairness in the conduct of trials, notice ought to have been given.
If, in a case like this, notice be not given, we think the burthen is thrown upon the State to satisfy the court that the respondent could not have been injured by the change.
In the case of State v. Prescott, 7 N. H. 287, where the jurors had been allowed to separate improperly during the trial, it being a capital case, the court decided that the burthen of proof was upon the government to show, beyond a reasonable doubt, that the prisoner was not injured thereby; and such proof not being adduced, the verdict was set aside.
Whether the same rule as to the quantity of evidence ought to be applied to this case or not, we think it is not enough to render it more probable than otherwise that the respondent was not injured; but that the court ought to be clearly satisfied on that point.
As we gather from the case and the evidence before us, the proof of the government went to show the commission of the offence in the house of Israel Perkins at a time which was specified, to meet which the respondent introduced the testimony of two or more witnesses who deposed to being in this wood-yard at that time, in sight of the door of this house, and that they saw respondent go to the door and apparently rap for admission, but that he did not go into the house.
To satisfy the jury, then, by an actual inspection of the premises, that, from the position occupied by these witnesses, they could not see a man standing at the door at all, might greatly injure the respondent, not only as rebutting the testimony of those witnesses, but by exposing him to the suspicion of having offered testimony known to be false.
If, therefore, the board was off at the time the offence is alleged to have been committed, it is obvious that respondent may have been seriously injured by its being replaced in the manner described.
Upon a carefid analysis of the evidence on this point, we think it is rendered more probable than otherwise, that the board in question was on at the time of the alleged offence; but the court cannot fail to see that there is a serious conflict in the testimony, and that a jury might have reached a different conclusion without being subject to the charge of finding against evidence, even if it were a civil case.
We are, therefore, of the opinion that the government has not satisfactorily shown that the respondent could not have been injured by replacing this board upon the fence.
It appears, also, from the evidence, including the affidavit of the respondent and of his counsel, that neither of them had any notice or [160]*160knowledge of this change in the fence until after the trial was had and the verdict rendered.
It is urged that no wrong was intended on the part of Col. Merrill, and we can readily conceive that he may have fully believed that the board was but recently thrown off; still, we think that a scrupulous regard for a strictly impartial trial required that he should not have replaced the board without notice to the parties.
So, it is said that he could not be regarded as an agent of the State, and this maybe strictly true; still, as a witness for the government, and aiding in the survey and admeasurements of the localities brought in-question, his connection with the trial was such, if any were necessary, as to make it the duty of the court to interfere, in case the respondent, .by an act of this kind, has been injured.
There are one or two other questions raised in the case, upon which the court is not prepared to express opinions, but as the verdict is to be set aside, and those questions may not again arise, it is not advisable to detain the case longer.
New trial granted.