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FANCHER, J. Spencer Lee was convicted of rape Committed On the perSon of Mary Finger, a married woman. There are several assignments of error. We notice One incident On the trial Which is not aSSigned as error, but, inasmuch as it is material to the case, We Will look to it. Without an aSSignment.
 An order in the record showing the proCeSS Of the trial in the Case recites that after the jury had been selected, impaneled and sworn, and having heard a part of the evidence, they were respited from further hearing until the meeting of the court the next morning, and, by consent of the Attorney General, the defendant, and his counsel in Open Court, they were allowed to go without being put in charge of an officer. The record ShOWS that the next morning the remaining evidence Was introduced, and the case argued by counsel, whereupon the jury received their charge, and on the same day returned a verdict of guilty.
In the case of Bud Long V. State, 132 Tenn. —, 179 S. W. 315, decided at the present term, we held that it was improper and constituted reversible error to permit the jury to go at large pending the trial of the case, on the ground that the defendant, under his constitutional guaranties of a fair and impartial trial by a jury, is entitled to have the jury removed from all possible contamination and influence, and that to
permit the jury to depart and separate, and not to keep them under the charge of an officer, as is required by law, is such material innovation upon the rightS Of defendants to have this fair and impartial trial that the Court Will reverse the case for this alone. This was held, notwithstanding the fact that the defendant consented that the jury might separate. The reason for this ruling is Stated in the Opinion in that case, which is filed for publication, and will not be repeated in this Opinion. This case is also reversed for the Same reaSOn, and Will be remanded to the lower court for a new trial. [2, 3] There is an assignment of error with respect to the charge of the trial judge, which we deem it is proper to notice. The court charged the jury as follows: “Further, gentlemen, should you believe that Mary Finger had had sexual intercourse with the defendant or with other men or boys before the time in question, the 22d of last July, you may look to said acts of lewdness, if shown in the proof, only for the purpose of shedding light upon her credibility as a witness in this case.” This instruction was not explained or qualified by any other portion of the charge. There was considerable evidence tending to show illicit acts with other men and boys, and also with the defendant previous to the act in question. The weight of this evidence should not have been limited to the effect upOn the credibility and Standing Of the State's witness Mary Finger. Such proof is competent as bearing directly upon the principal question at issue, that is, whether the intercourse Was by force Or With the Consent of the injured female, and this for the reason that no impartial mind can resist the conclusion that a female Who had been in the recent habit of illicit intercourse with others Will not be SO likely to resist aS One Who is Sp0tleSS and pure. The rule in many states is in accordance With the holding of the trial judge, and Such is the rule also laid down by Greenleaf, Vol. 3, § 214, and it is said that it was probably derived from the English cases Of Rex V. Hodgson, and Rex V. Aspinwald. However, as pointed out in Benstine v. State, 2 Lea, 169, 31 Am. Rep. 593, and Titus V. State, 7 Baxt. 132, that rule Was not adhered to in Tennessee. There is a very interesting review of authorities On this Subject in the note in 14 L. R. A. (N. S.) pp. 714 to 723. It appears that there is great diversity of opinion, but that the greater number follow the ruling in Rex V. Hodgson, supra. So, if the weight of authority is to be determined by the number Of reported Opinions, the greater Weight must be said to be on that side. It appears, however, that a respectable number. Of Courts are With Our Own Tennessee Court in their adherence to the contrary reasoning of Mr. Justice Cowan in People v. Abbot, 19 Wend. (N. Y.) 192. This learned judge contended that, inasmuch as the Offense was always done in secret and commonly proved by the testimony of the prosecutrix alone, every fact ought to be received Which tended to prove the absence on her part of the utmost reluctance and resistance to the Connection. And, although the body of a harlot may, in law, no more be ravished than the person of a chaste woman, nevertheless it is true that the former is more likely than the latter voluntarily to have yielded. Later the New York court, in People v. Jackson, 3 Park, Crim. Rep. 391, disapproved of the holding in People v. Abbot, on the ground that the weight of authority was against it, and that the remarks of Justice Cowan were obiter dicta. These views of that learned judge have been emphatically approved in other cases. Our Own Court, in Titus V. State, adopted his argument, and Said: “We deem this reasoning unanswerable on the question.” The Vermont Court, in State V. Johnson, 28 Vt. 512, expressly approved the holding, as is done in Brennan v. People, 7 Hun (N. Y.) 171; People v. Benson, 6 Cal. 221, 65 Am. Dec. 506; Watry v. Ferber, 18 Wis. 501, 86 Am. Dec. 789; Ford v. Jones, 62 Barb. (N. Y.) 484. In State V. Patterson, 88 Mo. 88, 57 Am. Rep. 374, Sherwood, J., referred to Judge Cowan’s opinion as having been criticized, but frequently followed, and that the reasoning of that case he had not seen answered, nor did he believe it COuld be. After all, where opinions are in conflict, it is not SO much the duty of a court to follow the greater number of decisions as it is to adopt the Sounder reasoning. The opposite View has been Sustained by Some because it had the larger number of adherents. The best, and in fact the only valid, reason for this adherence is expressed by the Oregon court in the case of State v. Ogden, 39 Or. 195, 65 Pac. 449, as follows: “* * * While a prosecutrix, as a witness in an action of rape alleged to have been committed upon her, is expected to defend her general reputation for chastity, she cannot anticipate the charges of specific acts of illicit intercourse which may be made by men who perhaps have been suborned to testify. * * * * We admit that this affords reason for that View. But does it outweigh the other reason in favor of Such proof, that a defendant charged With this capital Crime should have the benefit of all facts which may show the probability of consent on the part of the woman? If her character is good, it will indeed be hard to successfully impeach it, and as a rule the effort Will not be made. Former acts Of this nature with other men might not indicate so much a probability of
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consent with this man, but the fact, if true, |
as claimed, that she induced a relationship that began when he was a boy and continued On after she was married and up to the time of the alleged offense, would point most Strongly in favor of her consent On this Occasion. The rejection of the testimony for that purpose is very prejudicial. Acts of sexual intercourse may always be proven between the prosecutrix and the defendant upon a trial for common-law rape prior to the alleged offense, for the purpose of raising an implication of consent. This has been held quite generally. Reg. v. Cockroft, 11 Cox C. C., 410; Reg. v. Riley, 16 Cox C. C., 191; Rex v. Martin, 6 Car & P., 562; McQuirk v. State, 84 Ala. 435, 4 South. 775, 5 Am. St. Rep. 381; Rice V. State, 35 Fla. 236, 17 South. 286, 48 Am. St. Rep. 245; Shirwin v. People, 69 Ill. 55; Bedgood v. State, 115 Ind. 275, 17 N. E. 621; State V. Cook, 65 Iowa, 560, 22 N. W. 675; State V. Jefferson, 28 N. C. 305; State v. Reed, 39 Vt. 417, 94 Am. Dec. 337. It is here where the authorities divide. The sharp conflict in the decisions is over the competency of acts of intercourse between the prosecutrix and Other men than the accused. There is a greater reason for its introduction where the proof is of acts between the direct parties, but all acts, conversations, and admissions of the woman tending to show that she is a prostitute, or Of easy virtue, should be admitted for the twofold purpose of showing her character as affecting her testimony, and also to raise an implication Of her consent. The effect Of the instruction of the trial judge to the jury on this subject was to reject, for the purpose of shedding light on the question of consent, not only acts with other men and boys, but the intimate relations testified to With the defendant. The defendant in this case does not deny the act of carnal knowledge, but says that it was with her consent. This being the principal issue in the case, any previous acts upon her part testified to, if true, should be considered by the jury in coming to a conclusion as to whether she consented Or not. The court should have charged the jury that the evidence in question is proper and should be looked to, not only for the purpose of shedding light upon the credibility or standing of Mary Finger as a Witness in the case, but also as an aid for the jury to determine whether the intercourse was by force or by her consent. All the other assignments of error With respect to the admission of testimony and special requests to charge the jury are each and all OVerruled. We find no error On the part of the trial judge other than as set out in this opinion. We Omit any other COmment upon the testimony in the case, for the reason that it is to be again tried upon the factS,
IMBODEN et al. v. CITY OF BRISTOL et al. (Supreme Court of Tennessee. Oct. 2, 1915.)
1. MUNICIPAL CoRPORATIONS @:918 - ISSUE OF BONDS. Where the credit of a city is to be used for a proper city purpose, bonds may be issued, if due authority is given by the Legislature, without a submission of the matter to a Vote of the people.
[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1919–1923; Dec. Dig. 3:2918.] 2. MUNICIPAL CORPORATIONS @->871—STREET
IMPROVEMENTS—BONDS. - Const. art. 2, § 29, declares that the credit of no county, city, or town shall be given in aid of any person, association, or corporation except upon an election first held by the qualified voters. Priv. Acts 1913 (1st Ex. Sess.) c. 18, authorized the city of Bristol to improve streets and issue bonds to pay for the improvement; the bonds to be the absolute and general obligations of the municipality. The act further provided for the payment of two-thirds of the cost by abutting property owners, and they were allowed five years to complete payments. Held that, though the abutting property owners received a peculiar benefit and were specially assessed for it, yet, the improvement of the streets being for the benefit of the city and its inhabitants, the issuance of bonds for payment of the entire work was not a pledge of the city's credit for the benefit of such abutting owners.
[Ed. Note.—For other cases, see Municipal £rations. Cent. Dig. § 1817; Dec. Dig. Q2 71.]
Appeal from Chancery Court, Sullivan County; Hal. H. Haynes, Chancellor.
Bill by Robert Imboden and others against the City of Bristol and others. From a deCree Sustaining a demurrer, COmplainantS appeal. Affirmed.
Harr & BurroW, Of Bristol, for appellants. C. J. St. John, of Bristol, for appellees.
GREEN, J. This bill was filed by residents and taxpayers of the city of Bristol to enjoin the issuance of certain bonds about to be negotiated by the city in COnnection With Street improvement work. The bonds Were authorized by chapter 18, Acts of the First Extra SeSSion Of the Legislature of 1913—a front foot aSSeSSment act. The bill challenges the constitutionality of this act. A demurrer Was interposed by the city and Sustained by the chancellor, and from this decree complainants have appealed.
The act in question is not materially different from Other Statutes Of this State providing for special assessments for local improvements, and, among other things, it proVides that tWO-thirds Of the COSt Of the Work Shall be borne by the abutting OWners and One-third by the city. It authorizes the city to issue bonds to pay for the part of the Work charged to the abutting Owners, and provides that the city shall be repaid by assessments levied on the adjacent property to be discharged by the property OWnerS, at their option, in five annual payments.
[1, 2] It is said that the last-mentioned provision of the act violates section 29, art. 2, of the Constitution, as follows: “But the credit of no county, city or town shall be given or loaned to or in aid of any person, * * * association or corporation, except upon an election to be first held by the qualified voters of such county, city or town, and the assent of three-fourths of the votes cast at said election.” The argument against the validity of the Statute is founded on One of the reasons given in Our cases justifying special assessmentS. It is Said in these cases that the justification for special assessments for local improvements is that property contiguOuS to Such improvements receives a peculiar benefit not shared by property elsewhere located. So the cost of the improvement may be assessed in proportion to benefits conferred, and is not required to be imposed On the Whole body of property or taxpayers equally. Arnold V. Knoxville, 115 Tenn. 195, 90 S. W. 469, 3 L. R. A. (N. S.) 837, 5 Ann. CaS. 881; State ex rel. V. Powers, 124 Tenn. 556, 137 S. W. 1110. Taking this Statement Of the law as a basis, it is argued that such improvements are for the benefit of adjacent property ownerS, that bOndS issued to pay for Such improvements are in aid of such property owners, and therefore the issuance of Such bonds is a giving Or lending the City’S Credit in aid of Such parties in Violation Of the Section of the Constitution quoted. It should be observed that chapter 18 Of the Acts Of the First Extra Session of 1913 provides that the bonds here in controversy Shall be “the absolute and general obligations of the municipality.” It is conceded that improvement of its streets within its borders is a proper corporation purpose, and With legislative authority any municipality may issue its bonds for such a purpose. Where the credit of a city or a county is to be used for a proper county or corporation purpose, if due authority is given by the Legislature, bonds may be isSued by the city or county for Such purposes Without a Submission of the matter to a vote of the people. Shelby County V. Exposition Co., 96 Tenn. 653, 36 S. W. 694, 33 L. R. A. 717; State ex rel. V. Powers, 124 Tenn. 553, 137 S. W. 1110, and cases cited. Although the improvement of a particular street may confer a peculiar benefit upon the property owners along that street—so peculiar, indeed, as to justify a special asSeSSment upon them—the improvement is none the less a public improvement. In this case the expenditure is to be made On the city’s OWn easement, its Street, Of Which it had, and retains, COntrol, and Of Which all its citizens have the benefit. If a municipality could be restrained in the eXecution Of a proper COrpOration purpose because some of its citizens would derive special advantage therefrom, many of its enterprises would fail. Parks, Schools, bridges, and numerous other public Works benefit chiefly the immediate Section in which they are located. It cannot be said that a municipal improvement falls short of a corporate purpose because all its benefits are not, in fact, enjoyed by all the citizens in the same degree. The improvement of a city's Streets is an improvement of a public nature, an improvement Of the city's Own property, the enjoyment of which is not confined to adjacent property Owners. That adjacent OWners derive Special advantage therefrom sufficient to justify the levy of a Special assessment upon them does not alter the Case. The work is still of a public character, and expenditures for the same are expenditures for a COrporation purpose. To deny the public character or the corporate purpose of work accomplished by local assessments Would be to deny the power of a municipality to execute such an undertaking at all. Unless such work were for the public benefit Or for a corporation purpose, Citizens could not be required to Submit to assessments On account thereof. The property of adjacent owners could not be so burdened against their Will, however much it might be improved or enhanced in Value. So we must conclude that the prosecution of this improvement WOrk On its StreetS by the city of Bristol is for the benefit of the public, and that the use of the credit of the city for such work is for a legitimate corporation purpose, notwithstanding the fact that some property owners will be specially benefited. The case of Colburn V. Railroad, 94 Tenn. 43, 28 S. W. 298, in no sense conflicts with the Views herein expressed. In that case the county undertook to use its credit, as the court pointed out, for the purpose of becoming a stockholder and joint OWner With the railroad company in proposed improvements. In this case the city of Bristol proposes to use its credit for the improvement of its own Streets, of Which it has exclusive control. The chancellor correctly Sustained the city's demurrer, and his decree Will be affirmed, With COStS.
2. BAILMENT 3:12-ACCOMMODATION BAILMENT—LIABILITY OF BAILEE. Plaintiffs delivered money and checks to defendant salesman to carry to another town and deposit to their credit. Being warned by the bookkeeper of the house for which the salesman traveled as to danger of carrying the money to his house, he made it his custom to deposit the funds in an iron safe of a drug company, because he , arrived at the place of deposit after banking hours. A deposit against which the merchants notified him they had drawn was placed in the drug company's iron safe, and, when the salesman who had been otherwise engaged called for it two days later, it had disappeared. Held that, as every parting with an article bailed will not work a converson, the salesman was not guilty of converting the fund, though he did not deposit it the earliest possible moment.
[Ed. Note:—For other cases, see Bailment, Cent. Dig. §§ 37–41; Dec. Dig. <>12.]
Certiorari to Court of Civil Appeals.
Action by W. S. Ridenour and C. C. Ridenour, copartners, against William Woodward. On appeal to the Court of Civil Appeals, judgment was rendered for plaintiffs, and defendant bringS Certiorari. Decree of Court of Civil Appeals reversed, and cause dismissed.
Owens & Taylor, Of La Follette, for plaintiffs. C. A. Templeton and John Jennings. both of Jellico, for defendant.
WILLIAMS, J. W. S. Ridenour and C. C. Ridenour, a firm doing a mercantile business, brought this suit to recover $400 and interest, alleged to be due them because of the failure of Woodward, as bailee, to deposit in the First National Bank, of Jellico, checks and money intrusted to him for deposit to their Credit.
Woodward Was a traveling Salesman in the employ of Hackney & Co., a wholesale grocery establishment doing business in Jellico, and on his trips through the trade territory he Was accustomed to call On and make sales to the complainant firm, the store Of Which WaS located at a Small railWay station about 16 miles out from Jellico, which store was in charge of C. C. Ridenour.
Ridenour had from time to time, for a period of nine months preceding the incident that occasioned this litigation, Sent money and checks by Woodward to Jellico to be deposited to the firm’s credit in bank. Wood- . Ward made his trips from Jellico to the complainants' store by the railroad. The train’s schedule for the return trip called for arrival at Jellico at 7:20 at night, which was after banking hours. At the first Woodward began taking the money of complainant so intrusted to him to his home in the Suburbs of Jellico, about one-fourth mile beyond the city limits and about one-half mile beyond the district where the streets were lighted; and the next day take the same to the bank for deposit or carry it to the eStablishment of Hackney & Co., his employerS, and intrust it to the bookkeeper to be deposited in bank, Woodward Was cautioned
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by this bookkeeper that there was danger Of loss attending this method, and a change was made; Woodward taking the funds to some downtown store and depositing the same in an iron Safe commonly used for the keeping of valuables. Several times he had used the safe of the Smith Drug Company for that purpose, and Several times Other safes. He testifies, without contradiction, that he had not uniformly delivered the money from the safe to the bank On the day next Succeeding Such lodgment, but that at times he delayed doing so for a day or two. On the afternoon of July 22, 1912, which Was Monday, C. C. Ridenour handed to Woodward for deposit the $400 in question, which was placed that night in the Safe Of Smith & CO. His buSineSS Called him from Jellico On Tuesday morning before banking hours. He returned in due course of the business of his employers on Tuesday night after banking hours. On Wednesday morning he again went to the store of Smith & Co. Without making inquiry as to the money, thence Out of town On an early train for a short business trip, but returned to the city at 10:45, after the bank was opened, called at the drug Store, and asked for the money that he had left there on Monday night, when on search of the safe it was discovered that the funds had disappeared. The testimony does not disclose what became of it, though it is found by both of the lower courts that it was not purloined by WoodWard. C. C. Ridenour informed Woodward at the time the funds were intrusted to him that he had drawn or Was drawing checks on the bank against the same. Other facts are Set Out in the discussion which follows. The Court of Civil Appeals held that Woodward was liable to respond as for a conversion of the funds so lost. We have granted the Writ of certiorari in Order to a reView of that decree.  The rule is that a bailee for the acCommodation of the bailor is only answerable for his gross negligence or bad faith, the care to be taken by him to be measured, however, with reference to the nature of the thing placed in his keeping. Whitemore V. Haroldson, 2 Lea (70 Tenn.) 312; Hotel Co. v. Holohan, 112 Tenn. 214, 79 S.W. 113, 105 Am. St. Rep. 930, 2 Ann. Cas. 345; Marshall v. Railroad & Light Co., 118 Tenn. 254, 101 S. W. 419, 9 L. R. A. (N. S.) 1246, 12 Ann. Cas. 675. The Court of Appeals was of opinion that the holding in the case of Colyar v. Taylor, 1 Cold. (41 Tenn.) 372, controls this case. In that case Taylor had received from a bank in Nashville money for Colyar to be delivered gratuitously at Winchester. After receiving the money, he took it to the public fair grounds in the vicinity of Nashville, where he met one Estill, who was prevailed upon to take charge of and make the de
ed out in public view, within a few steps of the promiscuous crowd, before it was passed to Estill. Shortly after Estill got upon the train, not far distant from the fair grounds, and soon after taking his seat discovered that his pocket had been picked. The ruling was that such parting of posSession to Estill was a conversion Since it was unauthorized, and also that there was gross negligence shown by the circumstances. Accordingly, the Court of Civil Appeals held that the placing of the intrusted funds in an iron safe of another person Was Without authority and constituted a conversion by Woodward.  It may be truly said that the earlier decisions go along rigid lines and show but Slight, if any, disposition of the Courts to indulge in inferences in favor of the bailee. Clearly, it is not every parting with the
possession by the bailee of the thing bailed
that Will Work a conversion; there may be a parting that is qualified and temporary, evincing no intention on the part of the bailee to exercise a dominion Over the same inconsistent with the right of the owner, but COnSistent With a further Or Continued COntrol aS to the delivery designated to be made by the bailee. Spooner v. Manchester, 133 Mass. 270, 43 Am. Rep. 514; Fouldes V. Willoughby, 8 M. & W. 540. In Jenkins v. Bacon, 111 Mass. 373, 15 Am. Rep. 33, where the conclusion was a hard ruling Of liability On the part of the defendant bailee charged with a conversion, it was yet conceded that: If “for * * * Sufficient reason it should become inconvenient or unsafe that he should retain the manual possession of the bond, he would undoubtedly be at liberty to deposit it in any other place or mode, in which he
... * * might deposit his own property of the like description. . But, as between the original
depositor and himself, he would continue to
be the lawful and responsible custodian, and bound to practice that degree of care which the law requires of gratuitous bailees.” The Court of Civil Appeals erred in not taking note of and following the trend of the modern authorities, which is to break away from the stern rules which many of the courts of England and of this country were at One time disposed to apply to acts of a bailee claimed to be a deviation, and therefore to effect a conversion. Mr. Freeman in his annotations of the case of De Tollenere v. Fuller, 1 Mill, Const. (S. C.) 117, at 12 Am. Dec. 616, 621, after Citing With approVal Our case of McNeill V. Brooks, 9 Tenn. (1 Yerg.) 73, said: “It is certainly a hard rule to hold that slight acts of misuser, by a bailee, of the thing bailed, are to be regarded as evidence of a permanent appropriation of the property to his OWn use. Perhaps a more reasonable doctrine is that of a majority of the court in Harvey v. Epps, 12 Grat. (Va.) 153, etc.” Schouler, in his work on Bailments, remarkS On this point that:
“The leaven of common sense, which keeps