The evidence, if admissible, was beyond doubt highty prejudicial to the defendant. On the other hand, the evidence of the witness Ruth Brady, if believed was very damaging to the state.

It is well settled that in a criminal case a witness on cross-examination may be question as to his relations and feelings of friendliness or hostility towards the defendant. In Underhill on Criminal Ev. Sec. 221, it is said: "Questions put to the witness for the purpose of ascertaining his relations, business, social or otherwise, with the accused and his state of mind, whether hostile or friendly towards him, are unobjectionable."

In Holley v. Commonwealth, (Ky.) 36 S. W. 532, a woman was introduced as a witness for the defendant. It was held that it was not error for the pur pose of showing her interest and probable bias to allow her to prove on cross examination that she and the defendant had been living together without being married,

In Smith v. State, 143 Ind. 685, 42 N. E. 913, it was held that the state on the cross examination of a female who was a witness for the accused could show her relations with him. as showing bias in her favor on the part of the witness.

In Martin v. St. 125 Ala. 64, 28 So. 92, it was held that a witness for the defendant could be asked on crossexamination if she did not sustain illicit relation with the defendant.

In Sexton v. State, 48 Tex. Cr. 497, 88 S. W. 348, a witness was permitted to be asked on cross examination if she had not lived in adultery with defendant for five or six years. She answered in the affirmative. This was held to be proper cross examination. The court says:

"It was relevant for the purpose of showing her bias and friendship and close relationship to the appellant, and her interest in testifying in his behalf and consequently as touching her credibility."

The doctrine that a witness may be cross-examined as to matters going to credibility may well be regarded as an exception to the rule that cross-examination is to be confined to matters touched on in the examination in chief, and the limits within which either party may crossexamine upon matters not strictly relevant, but which effect the credibility of the witness, is largely within the discretion of the trial court, but the privilege of degrading a witness by proof of disreputable conduct, not connected with the facts on trial, is one so liable to abuse that it should be closely guarded and allowed only upon the exercise of sound judicial discretion, and then only to affect the credibility of the witness.

The witness, Ruth Brady, testified on her crossexamination that she was the sweetheart of the defendant, Here we have a very powerful motive for testimony in his behalf. She identified and admitted the photograph which shows that withness in the presence of a third person, permitted the defendant to take indecent liberties. with her person.

We think the entire evidence upon the cross-examination, including the photograph, was properly admitted, as showing the nature of the relations existing between the witness and the defendant, and that their relations were such as would create a bias on the part of the witness that might reasonably be supposed to affect her credibility, and the fact that such evidence would probably prejudice the defendant in the minds of the jury, did not affect its admissibility.

It is also contended that the evidence as to the photograph was inadmissible, because it compelled said witness Ruth Brady to give evidence which tended to incriminate her, in that it tended to show that witness was guilty of a violation of the criminal laws of the

state prohibiting indecent exposures. (See 2463 Rev. Laws.)

It is elementary law, supported by all the authorities that the privilege to refuse to answer incriminating questions is one personal to the witness, an objection to a question for this reason should come from the witness; not the party.

In Underhill on Crim. Ev. Par. 247, P. 449, the rule is thus stated:

"The right to refuse to answer incriminating questions is personal to the witness. To preserve his right he must himself object. If he wishes to answer, he may do so and neither the prosecution nor the accused has a right to object."

There is no merit in the contention. The privilege was that of the witness and it is not a matter of which the defendant can complain.

Finally, under several assignments it is contended that the verdict is contrary to the evidence.

The prosecutrix testified that she was born on the 30th day of August, 1894, and had lived with her parents at Davidson, in Tillman County for about three years, and the defendant had went with her off and on for about three years; that during the months of March, April and May, 1911, he was with her about three times a week; that he promised to marry her, and she permitted him to have sexual intercourse with her, the first time in March, 1911, while they were going to her home from church. That this conduct was repeated several times. always on the way from church to her home. The last act occurred May 25th, 1911. As a result she became pregnant; that she informed the defendant and he said "I will fix that

up all right in a few days," and that they would go to Frederick, the County seat and get married. That soon thereafter he left the state; that her child was born January 28th, 1912; that she never had intercourse with any man other than the defendant; that she consented to have intercourse with the defendant because he promised to marry her, and she loved him; that she was unmarried and not the wife of the defendant.

There are in evidence many facts and circumstances of a corroborative character which materially strengthens the evidence of the prosecutrix as to the principal fact about which she testifies.

We have given the evidence careful consideration, and our conclusion is that the evidence is ample to sustain the verdict, and that controversy of fact was peculiarly one for the jury to determine.

It is contended, however, that because the prosecutrix testified that the defendant had sexual relations with her prior to "The day of May, 1911, the time alleged in the indictment, that she was not on the........ day of May, 1911, or at any time after the first act of sexual intercourse with the defendant, a female of previous chaste and virtuous character, therefore he cannot be convicted of any subsequent act, and cite the case of State v. Dacke (Wash.) 109 Pac. 1050, 30 L. R. A. (N. S.) 173.

This contention presents the question to this court for the first time, and it becomes necessary therefore to determine whether a man may gratify his lust and passion by persuading a chaste child to permit him to have sexual intercourse with her, and afterwards repeat the act, and then in a prosecution for statutory rape to take advantage of his previous defilement of the child to avoid the application of the statute.

The testimony of the prosecutrix tended to prove sev

eral acts constituting the crime charged. The defendant did not move or request the court to require the state to elect on which act it would rely. The court properly instructed the jury in effect, that if they found from the evidence beyond a reasonable doubt that the defendant, within the county and state, on the day of May, 1911, or at any time within three years prior to the finding of the indictment did have sexual intercourse with the prosecutrix, and that she was at the time under eighteen years of age and of previous chaste and virtuous character, then they should find the defendant guilty or rape in the second degree.

Our code provides that an indictment or information must charge but one offense. (Rev. Laws Sec. 5741.)

It is a general rule that when the law permits but one offense to be setout in the accusation, the state will be compelled to choose the transaction on which it will ask a verdict.

1. Bish. New Crim. Proc. Par. 459.

In this class of cases however, we think the question of election is properly a matter within the judicial discretion of the trial court. We think the contention is not well taken. Such is not the law, and such a doctrine is without support in the principles of criminal juriprudence.

In our opinion, the defendant being the author of the childs defilement is precluded from taking advantage of his previous wrong doing to avoid the application of the statute.

In the case of State v. Sargent, 62 Wash. 692, 114 Pac. 868, 35 L. R. A. (N. S.) 173, Crow, J., delivering the opinion of the court and discussing the question here presented said: