(after stating the facts as above). Error was committed and a new trial should be had.

We are satisfied that the rule of law is that, on the trial of a man for adultery, evidence of the reputation for chastity of the particeps criminis is admissible in connection with evidence of facts showing-opportunity for committing the offense, but evidence of a specific act of adultery with another than the defendant is not admissible. State v. Walters, 45 Iowa, 389; People v. Molineux, 62 L.R.A. 193, and note 335, 168 N. Y. 264, 61 N. E. 286; McAllister v. State, 112 Wis. 496, 88 N. W. 212; Whart. Crim. Ev. 9th ed. § 46.

There are, it is true, few adjudicated cases upon the subject. It, however, seems to be generally conceded that the adulterous inclination must be mutual. Bass v. State, 103 Ga. 227, 29 S. E. 966; 1 Cyc. 969, 2 C. J. 22.

*293Thus in the case of Till v. State, 132 Wis. 242, 111 N. W. 1109, the court says: “The crime of adultery, perhaps more frequently than any other, must ordinarily be proved by circumstantial evidence, and the rule is thoroughly established that proof of adulterous inclination between the parties existing prior to the alleged offense, combined with proof that the parties have been together ‘in equivocal circumstances, such as would lead the guarded discretion of a reasonable and just man under the circumstances to the conclusion of guilt beyond a reasonable doubt,’ are sufficient to justify an inference that adultery did take place between them at the time of such opportunity. . . . This rule is commonly abbreviated into the statement that proof of inclination and opportunity suffice; but that rule is correct only when it is understood that inclination means more than ordinary human tendencies, and must extend to proof of conduct reasonably suggesting specific libidinous tendency of each of the parties toward the other

In this view of the law the evidence of the witness Marks should have been stricken out, the remarks of counsel for the state were improper, and the instruction which was given by the court was at least confusing. The instruction also that asked by counsel for the defendant should, under the circumstances of the case, have been given; for although the record shows that it was “denied as coming too late^arguments having been concluded July 24, 1917, and this request having been presented July 25, 1917, 9 a. m., just as the jury was about to be instructed,” — the record shows that the arguments of counsel were not closed “until just before the time for adjournment on the 24th,” and the instruction was clearly made necessary by the improper remarks of counsel for the state, which emphasized the error in the admission of the testimony; and though counsel, for the defendant did not object to the statement during the argument, we are clearly of the opinion that he was not required to do so, but might seek to cure the wrong by asking for an appropriate instruction. Taft v. Fiske, 140 Mass. 250, 54 Am. Rep. 459, 5 N. E. 621.

Even if the request for the instruction came too late, the court, in view of his error in allowing the objectionable testimony to remain in the record and of the remarles of the counsel for the prosecution, should *294not have given the misleading instruction that he gave and which is first complained of. State v. Barry, 11 N. D. 428, 92 N. W. 809.

The order of the District Court is reversed and a new trial is ordered.

I concur in the result.