¶1Information charging the crime of rape. Defendant was convicted, and on his motion the court made an order granting a new trial, from which order the people have appealed.
¶2The question involved in this appeal arises upon the admissibility of certain 'evidence. This evidence was introduced by defendant and tended to prove that the prosecutrix, previous to the time when the commission of the offense here charged was laid in the information, had consented to the having of sexual intercourse with other men. In the early case of People v. Benson, 6 Cal. 221, 65 Am. Dec. 506, this identical question was involved, and it was there held that such evidence was competent and admissible. In People v. Johnson, 106 Cal. 289, the Benson case is cited, and the court said: “This class of evidence is admissible for the purpose of tending to show the non-probability *153of 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 likely to consent than one whose past reputation was without blemish, and whose personal conduct could not truthfully be assailed.”
¶3It may be conceded that the weight of authority is opposed to the rule laid down in the Benson case. Yet there is respectable authority supporting the doctrine as there declared. (State v. Sutherland, 30 Iowa, 573; Benstine v. State, 2 Lea, 175; 31 Am. Rep. 593; State v. Patterson, 88 Mo. 91; 57 Am. Rep. 374; People v. Abbot, 19 Wend. 192; Brennan v. People, 7 Hun, 171; Woods v. People, 55 N. Y. 515; 14 Am. Rep. 309.) The Benson case was quite well considered. And in view of the fact that it has stood so many years as evidencing the law of this state upon the proposition the reasons urged for its overthrow at this time are not deemed sufficient by the court.
¶4For the foregoing reasons the order granting the new trial is affirmed.
¶5Henshaw, J., Temple, J., Harrison, J., and Van Dyke, J., concurred.