Opinion of the Court. The Ordinance of 1787 provided, subject to alteration by the legislature of the district, for the descent of property and that there should in no case be a distinction between kindred of the whole and half blood, and yet the first act passed in this state, the act of 1805, 1 Chase's Statutes, 515, made the distinction, substantially in the form it now exists. Speculation as to the reasons for the distinction might be very interesting, but could not change the settled construction of the statute in the present case. Blackstone Book 2, chapter 14, while attempting to justify the distinction says: "It is certainly a very fine-spun and subtle nicety; but considering the principles upon which our law is founded, it is not an injustice, nor always a hardship; since even the succession of the whole blood was originally a beneficial indulgence, rather than the strict right of collaterals; and though that indulgence is not extended to the demi-kindred, yet they are rarely abridged of any right which they could possibly have enjoyed before." Of Blackstone's effort, Sir Henry Maine in his Ancient Law, chapter 5, says: "In all the literature which enshrines the pretended philosophy of law, there is nothing more curious than the pages of elaborate sophistry in which Blackstone attempts to explain and justify the exclusion of the half-blood." Maine suggests the following explanation, "In agnation too is to be sought the explanation of that extraordinary rule of English Law, only recently repealed, which prohibited brothers of the half blood from succeeding to one another's lands. In the customs of Normandy, the rule applies to uterine brothers only, that is, to brothers by the same Opinion of the Court. mother but not by the same father; and, limited in this way, it is a strict deduction from the system of agnation, under which uterine brothers are no relations at all to one another. When it was transplanted to England, the English judges, who had no clue to its principle, interpreted it as a general prohibition against the succession of the half blood, and extended it to consanguineous brothers, that is to sons of the same father by different wives." In volume 4, Kent's Commentaries, *406, is an interesting note suggesting the source of the distinction between agnation and cognation. Pollock and Maitland in their History of English Law do not agree with Sir Henry Maine. They say, second volume, 303: "Our persuasion is that the absolute exclusion of the half blood, to which our law was in course of time committed, is neither a very ancient nor a very deep-seated phenomenon, that it tells us nothing of the original constitution of feuds nor of the agnatic family. In truth the problem that is put before us when there is talk of admitting the half blood is a difficult one and our solution of it is likely to be capricious. We can not say now-a-days that there is any obviously proper place for the half blood in a scheme of inheritance, especially in our 'parentelic' scheme. The lawyers of the thirteenth and fourteenth centuries had no ready solution, and we strongly suspect that the rule that was ultimately established had its origin in a few precedents. About such a matter it is desirable that there shall be a clear rule; the import of the rule is of no great moment. Our rule was one eminently favourable to the king; it gave him escheats; we are not Opinion of the Court. sure that any profounder explanation of it would be true." The laws of descent among the New England settlers were not those of the mother country, and there is an interesting discussion of the matter by Mr. Andrews in his essay on "The Influence of Colonial Conditions as Illustrated in the Connecticut Intestacy Law," in Selected Essays in AngloAmerican Legal History, Volume 1, page 431. It may be the reason our statute does not distinguish between the brothers and sisters of the whole and half blood of the ancestor is the one already suggested that, although in the case of ancestral property the blood is looked to yet, the property descends as the estate of the intestate and not as the estate of the ancestor. But whatever the reason, we conclude with the observation of Chancellor Kent, 4 Kent's Commentaries, *406, “The laws of all countries, and our own in particular, are so different from each other on the subject, that they seem to have been the result of accident or caprice, rather than the dictate of principle. There seems to be no very strong general principle (though, no doubt, the feelings of nature. might interpose some powerful appeals in particular cases) why the half blood should be admitted equally to the inheritance of the ancestor, which he acquired by purchase, and excluded from that which he acquired by descent, devise, or gift, from some remoter ancestor, in whose blood they do not equally partake. If the ancestor was lawfully seized in fee, why should the course of descent be varied according to the source from which his title proceeded, or the manner of his procuring it? If Statement of the Case. the rule of inheritance had required no examination beyond the title of the intestate, and the proximity of the blood to him, there would have been more certainty and simplicity introduced into our law of descents." The judgment is affirmed. Judgment affirmed. CREW, C. J., SPEAR, DAVIS. and PRICE, JJ., con cur. BOYD V. THE STATE OF OHIO. Trial of defendant for carnal abuse-Of female under sixteenEvidence of similar acts-Within two months of indictable charge-Admissible as corroborative of testimony of prosecutrix-Law of evidence. On the trial of an indictment charging defendant with having carnally known and abused a female person under sixteen years of age with her consent, evidence of similar prior acts of sexual intercourse between the accused and the prosecutrix within a period of two months immediately preceding the date laid in the indictment, is admissible for the purpose of showing the relation and intimacy of the parties, and as corroborative of the testimony of the prosecutrix touching the particular act relied upon for a conviction. (No. 6646-Decided November 30, 1909.) MOTION for leave to file petition in error to the Circuit Court of Hocking county. At the October term, 1908, of the court of common pleas of Hocking county, Francis Boyd was indicted, under favor of the provisions of Section Opinion of the Court. 6816, Revised Statutes, for the crime of rape, alleged to have been committed by him upon the person of one P. S. with her consent, on the 10th day of August, 1908, she the said P. S. then and there being a female under the age of sixteen years, to-wit: of the age of thirteen years. Thereafter, and at the same term of said court of common pleas, said Francis Boyd was tried and convicted of the offense charged against him in and by said indictment. This judgment of conviction was affirmed by the circuit court and said Francis Boyd now asks that leave be granted him to file a petition in error in this court to reverse the judgment of said circuit court. Mr. Edwin D. Ricketts and Mr. C. V. Wright, for the motion. Mr. H. E. Sparnon, prosecuting attorney, and Mr. O. W. H. Wright, for the state of Ohio. CREW, C. J. The indictment in this case alleges that the offense charged therein, upon which reliance was had for conviction, was committed on the 10th day of August, 1908. On the trial of the case in the court of common pleas the prosecutrix being called as a witness on behalf of the state, was permitted, over the objection of defendant, to testify that on several occasions prior to said 10th day of August, 1908, she had had sexual intercourse with the accused. The prior acts of illicit intercourse thus shown covered a period of about two months immediately preceding said 10th day of August, 1908. It is the claim of counsel repre |