therefore predisposes the mind of the juror to believe the prisoner guilty. . . . It is not only unjust to the prisoner to compel him to acquit himself of two offenses instead of one, but it is detrimental to justice to burden a trial with multiplied issues that tend to confuse and mislead the jury. . . . From the nature and prejudicial character of such evidence, it is obvious it should not be received, unless the mind plainly perceives that the commission of the one tends by a visible connection to prove the commission of the other by the prisoner."

The following authorities also illustrate and uphold this doctrine: 4 Elliott, Ev., sec. 3103; 23 A. & E. Ency. L. (2d Ed.),247,871; Wharton, Crim. Ev. (9th Ed.), sec. 30; Underhill, Crim. Ev., sec. 87; McKelvey, Ev., pp. 144, 145; People v. Bowen, 49 Cal. 654; Sullivan v. O'Leary, 146 Mass. 322, 15 N. E. 775; People v. Sharp, 107 N. Y. 427, 14 N. E. 319, 1 Am. St. Rep. 851; State v. Goetx & Martin, 54 Mo. 85; People v. Tucker, 104 Cal. 440, 38 Pac. 195; Parkinson v. People, 135 Ill. 401, 25 N. E. 764, 10 L. R. A. 91; People v. Lane, 100 Cal. 379, 34 Pac. 856; State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69; People v. Stewart, 85 Cal. 174, 24 Pac. 722; People v. Corbin, 56 N. Y. 363, 15 Am. Rep. 427

2

The defendant testified in his own behalf and denied that he assaulted the prosecutrix, or that he took any undue liberties with her, On cross-examination the district attorney was permitted, over defendant's objections, to interrogate him at great length with reference to other little girls who had both prior and subsequent to the alleged commission of the crime charged visited, or called to see him, at his home. Many of these questions were asked in such a way as to convey the idea that the defendant permitted these little girls to call at his home in order that he might ravish and debauch them. The following are a few of the many questions that were asked by the district attorney: "The fact of the matter is, Mr. Williams, is this, isn't it, that your house up there has been frequented by these little girls almost constantly for the past five or six years?" "These children that you have named, not all, not all the time, but a number of children have been frequenting

your house for six or eight years past, haven't they-little girls?" "What did you have these children come to your house for?" "Why did you not say, 'My little ladies, keep away from here. I am living alone, and don't want you to come here at all?" The cross-examination was interspersed with the following questions, and others of similar import. "You know what the girl (referring to one of the other girls) says about you? And she represented to you and her mother that you had ravished her, didn't she?" While the objections made to the last two questions were sustained by the court, nevertheless the asking of them in connection with the other questions referred to may well have led the jury to believe that defendant was guilty of other crimes similar to the one charged in the information. It is contended, however, that the questions were proper as tending to test defendant's memory, and to affect his credibility as a witness. The extent to which a defendant in a criminal action may be cross-examined for the purpose of testing his memory and affecting his credibility is defined and illustrated by this court in the case of State v. Shockley, 29 Utah 25, 80 Pac. 865, 110 Am. St. Rep. 639. Under the rule defining the extent to which the cross-examination in such cases may be carried for the purpose of testing memory and affecting credibility as declared in that case, the questions here complained of were clearly improper.

3

Before the questions under consideration were propounded to the defendant, he was examined at great length by the district attorney respecting visits and calls made at his home by other little girls, all of whom, it appears, resided in his immediate neighborhood. He frankly stated that certain girls, naming them, had frequently made friendly visits at his home, and that he had on numerous occasions given them small sums of money with which to purchase oranges and other eatables at the stores, and that he frequently met children on the streets and gave them money for the same purpose, but denied that he had any improper motive in doing so, or that he ever had any improper relations with them. The questions propounded

and the matter elicited by them did not have the effect of testing the memory of defendant nor of affecting his credibility as a witness, but of showing facts and circumstances from which it could be inferred that he had committed other crimes like the one for which he was on trial. We are therefore clearly of the opinion that the asking of the questions complained of and compelling the defendant to make answer thereto was prejudicial error. A defendant charged

with a crime of this character committed on a child of tender years comes before the court under greater disadvantages than prisoners ordinarily do who are charged with other offenses. The fact that he is accused of so heinous an offense is sufficient to create in the minds of many a prejudice against him, if not a belief of his guilt. The situation of a man charged with this crime is well illustrated in 3 Greenl. Ev., sec. 212, wherein the author says: "It is to be remembered, as has been justly observed by Lord Hale, that it is an accusation easily made, hard to be proved, and still harder to be defended by one ever so innocent." See, also, 23 A. & E. Ency. Law (2d Ed.), 883, and cases there cited. While fondness for little children by an aged person is usually regarded as indicative of refinement and virtue rather than of a depraved nature, and especially in cases where such attachment is reciprocated by the children themselves, yet, let it be charged, or even suspected, that fondness for little girls by a man of mature years, and the attention paid them by him on a particular occasion, was prompted by a desire on his part to attract the little ones to him and gain their confidence in order to enable him to ravish and debauch them, public sentiment will suddenly be aroused against him, however groundless the charge or suspicion may be. Therefore great care should be exercised in a trial of this kind to prevent the accused from being convicted by the prejudice which a charge of this kind is apt to create against him and on the prejudice which naturally exists against the crime itself. The cross-examination of defendant on these matters, conducted as it was on the the ory and in such a way as to carry with it the imputation

4

that he had committed numerous other crimes like the one for which he was on trial, considered by the jury in connec tion with and as corroborative of his alleged statement that he had been in the habit of ravishing and debauching other little girls, must have had a pronounced, if not a controlling, influence on the jury in their consideration of the case. The defendant asked the court to instruct the jury that in determining the weight to be given the evidence of the prosecutrix they might take into consideration the fact that she "did not make complaint until nearly three years afterwards." The court refused to instruct the jury as requested, and failed to instruct at all upon this subject. We think this was error. The undoubted weight of authority is that where, as in this case, there has been great delay on the part of the prosecutrix in making complaint, the defendant is entitled to have this fact considered by the jury as bearing upon her credibility as a witness and the weight of her testimony, and especially where, as here, no reason for the delay is shown. In the case of State v. Halford, 17 Utah 475, 54 Pac. 819, this court held that "in all such cases it is desirable to know how soon, and in what way, the assaulted party complained. The fact of an early complaint is material as bearing upon the credibility of her testimony, and delay in making complaint, unless excused or accounted for, as by showing she was under the fear or control of her assailant will bear upon her credibility." In 10 Ency. Ev. 590, it is said: "The general rule is that lapse of time between the alleged outrage and the making of complaint does not render evidence of the complaint inadmissible, but merely affects its weight by tending to discredit the testimony of the prosecutrix." Many cases are cited in the footnote which illustrate and support this doctrine. (State v. Neel, 21 Utah 156, 60 Pac. 510; 3 Greenl. Ev., sec. 212; Underhill, Crim. Ev., sec. 411).

The judgment is reversed.

STRAUP, C. J., and FRICK, J., concur.

MURPHY v. BOOTH.

No. 1990. Decided August 4, 1909 (103 Pac. 768)

1. MALICIOUS PROSECUTION-INSTRUCTIONS-MISLEADING

TION.

INSTRUC

Where the only evidence, in an action for malicious prosecution, as to any claim for moneys, was one for money due from plaintiff to a corporation, of which defendant was manager, the instruction that, if the jury "find from the evidence that defendant caused plaintiff to be arrested for the purpose of assisting defendant in collecting a claim for moneys which defendant thought he had against plaintiff, . . then it was begun maliciously," could not have been understood by the jury to refer to some personal claim of defendant, not mentioned in the evidence. (Page 291.)

2. MALICIOUS PROSECUTION-EXEMPLARY DAMAGES EVIDENCE. Evidence, in an action for malicious prosecution, held to authorize a finding of exemplary damages. (Page 292.)

3. DAMAGES "EXEMPLARY DAMAGES." Exemplary, punitive, or vin. dictive damages are such damages as are in excess of the actual loss, and are allowed where a tort is aggravated by evil motive, actual malice, deliberate violence, oppression, or fraud. (Page 292.)

APPEAL from the District Court, Third District; Hon. T. J. Lewis, Judge.

Action by Julia Murphy against Robert L. Booth.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Edwards, Smith & Price for appellants.

Stewart & Stewart and E. A. Walton for respondent.

MCCARTY, J.

On October 10, 1906, Julia Murphy, plaintiff, commenced this action in the district court of Salt Lake County against Robert L. Booth, defendant, for malicious prosecution. It is alleged in the complaint that: