¶1 (dissenting) :
¶2 I am unable to concur in the view that the judgment of conviction in this case should be reversed. It is proposed to *421 grant a new trial because the trial Judge refused to strike out all testimony of the prosecutrix which had reference to a letter written by her to her mother the morning after the offense was alleged to have been committed. In the testimony objected to, the prosecutrix who was nineteen years of age at the time of the offense, had testified that she informed her mother in this letter of the outrage which had been committed upon her.
¶3 It is admitted that counsel for the defense made no objection when the evidence was given, nor did they indicate any dissatisfaction with it until at the close of all of the testimony, when they moved to strike it out, upon the ground that there was no corroborative testimony that such a letter was written. The complaint is now made that the State did not offer the letter in evidence, nor did the mother of the prosecutrix testify, although she was present in Court and sat within the bar throughout the trial.
¶4 When testimony has been admitted without objection in criminal cases, the granting or denying of a motion to strike it out rests in the discretion of the Court. State v. Manos, 179 S. C., 45, 183 S. E., 582. The general rule is that where a party fails to obect to the admission of evidence in such cases, even though it is incompetent, he is not entitled as a matter of right to have it stricken out. 23 C. J. S., Criminal Law, § 1070, p. 500.
¶5 The questions addressed to the prosecutrix with reference to the letter plainly indicated that the State was endeavoring to prove that timely complaint had been made by the prosecutrix to her mother the day after the crime is alleged to have been committed. This was clearly its purpose, and was amply sufficient to have put the defense upon notice, but they remained quiescent until all of the testimony was closed.
¶6 Nor, in my opinion, was the failure of the State to call the mother of the prosecutrix as a witness prejudicial to the defense. While the prosecutrix was on the stand, the defense *422 refrained from asking her any questions on cross examination, with reference to having made complaint to her mother by letter on the morning following the alleged commission of the crime. They brought out, however, from her that when she returned to her home that night she made no complaint, either to the Sheriff or to her husband. This gave the defense the opportunity of arguing to the jury not only that the prosecutrix had made no complaint on the night of the alleged outrage, to her husband or to the Sheriff, but it enabled the defense to call to the attention of the jury the failure to offer the mother of the prosecutrix as a witness, and all the implications that might be drawn therefrom.
¶7 Furthermore, the crime is alleged to have been committed on April 13, 1942, and the warrant of arrest was issued on April 16, 1942, at the instance of the husband of the prosecutrix, so it is clear that the inference may be drawn from this fact that an early complaint was made.
¶8 In my opinion, counsel for the defense, having failed to make the motion to strike until after the conclusion of all the evidence in the case, was not entitled as a matter of right to have the alleged objectionable testimony stricken out. Nor did the trial Judge abuse his discretion in refusing to grant the motion when made.