#### Andrew Day v. State of Nebraska.

Filed October 18, 1918.

No. 20561.

Rape: Corroborative Evidence: Instructions. Defendant was charged with the crime of ^statutory rape. He testified in his own hehalf and denied that he committed the act. The court, among others, submitted this instruction: “The jury are instructed that in this case there must be testimony on behalf of the state corroborating the testimony of the witness, May Bader, to justify a conviction, but it is not essential to a conviction that she should be corroborated by the testimony of other witnesses as to the particular act constituting the offense. It is sufficient if she be corroborated as to material facts and circumstances which tend . to support her testimony, and from which, together with her testimony as to the principal fact, the inference of the guilt of the defendant may be drawn.” Evidence examined, and the giving of the instruction *held*to be without error; and *held*that the verdict is supported by the evidence.

Error to the district court for Boone county: George H. Thomas, Judge.

*Affirmed.*

*Vail S Flory,*for plaintiff in error.

*Willis E. Reed, Attorney General, Orville L. Jones*and *W. J. Donahue, contra.*

Dean, J.

Defendant was convicted under section 8588, Rev. St. 1913, of the crime of statutory rape, and sentenced to serve a term of not less than three years in the penitentiary. He prosecutes error.

It is argued that the verdict is not supported by the evidence; that the testimony of May Bader, the prosecutrix, is not corroborated, and that the court therefore erred in giving the instruction numbered 11 that appears in the syllabus.

Defendant was twenty-six. May Bader was fourteen. She was working at an Albion hotel when defendant called on her there at about 7 o ’clock on Sunday evening *708December 16, 1917, and on his invitation she went car-riding with him and a young man named Pox a few miles into the the country, to a place where a sixteen-year-old girl friend of Pox and ,the prosecutrix was working. The party returned to Albion at about 8 and went together to an unoccupied three-room apartment that had recently been rented by Pox and his mother, but into which they had not yet moved,. In this apartment, unfurnished except for some chairs, a cabinet, and a stove, defendant and May Bader and Pox and his girl companion remained from 9 at night until about 6 the next morning.

The prosecutrix testified that she and defendant occupied one of the rooms, and that he there had sexual intercourse with her. She said that Pox and the other girl occupied another room. The latter testified that, by the aid of a- flashlight, she saw defendant and the prosecutrix lying on the floor in a compromising position. It is seldom that the offense in this class of cases is so clearly proved.

Respecting corroboration, it appears that shortly after his arrest defendant made a voluntary statement to the sheriff that in effect corroborated the evidence of the prosecutrix as to the principal fact constituting the crime. There was other corroborative evidence tending to support that of the prosecutrix on the same point that it is not necessary to discuss here.

The instruction appearing in the syllabus was given by the court. Defendant in his testimony denied that he had sexual intercourse'with the prosecutrix. It was not error to give the instruction. *Hammond v. State,*39 Neb. 252.

' The testimony of the prosecutrix was amply corroborated. Reversible error does not. appear in the record. The judgment is

Affirmed.

Rose and Sedgwick, JJ., not sitting.