(December 8, 1899.)

#### STATE v. ANDERSON.

[59 Pac. 180.]

Rape — Uncorroborated Testimony of Prosecutrix. — While a conviction, for rape may be properly had upon the uncorroborated' testimony of a prosecutrix, this would only be warranted when ithe reputation of the prosecutrix for chastity is unimpeached, and when the facts and circumstances surrounding the commission of the offense are corroboration and not contradictory of the statements of the prosecutrix.

Same — Instructions—Prejudicial Error. — In a prosecution for rape, an instruction) which virtually instructs the jury that they may find corroboration of the testimony of the prosecutrix in her own statements is misleading and amounts to prejudicial error.

(Syllabus by the court.)

APPEAL from District Court, Blaine County.

L. L. Sullivan, for Appellant.

At common law where the accused was not permitted to testify in his own behalf, the testimony of the prosecutrix might be sufficient to warrant a conviction for rape; but under the statutes of this territory where the accused avails himself of the right to testify, and clearly and explicitly denies the commission of the offense, there must be testimony corroborating that of the prosecutrix to authorize a conviction. *(Bueno v. People,*1 Colo* App. 232, 28 Pae. 248; *State v. Balcer,*ante, p. 496, 66 Pac. 81; *Sowers v. Territory,*6 Olda. 436, SO Pac. 267.)

Samuel H. Hays, Attorney General, for the State.

In many states by statute no conviction can be had on the uncorroborated evidence of the prosecutrix. We have no such statute in this state. The difficulties, however, of securing satisfactory evidence in cases of this kind have been recognized in every jurisdiction, but in the absence of a statute the lower court, had no authority to instruct the jury as to the weight which they should give to the uncorroborated statement of prosecutrix.. That was a matter entirely for the jury. (State *v. Wilcox,*11. *707Mo. 569, 33 Am. St. Eep. 551, 20 S. W. 314.) Defendant in answer denies the charge and accuses the prosecutrix of improper conduct with several boys. The extreme latitude permitted defendant in introducing evidence and testifying to matters entirely irrelevant, but which tended to prejudice defendant before the jury, is the most noticeable thing in the case. He was permitted to discredit her parentage. Also to testify to her alleged misconduct with several boys. This evidence was wholly inadmissible. The weight of authority is to the effect that in eases of this kind specific acts of misconduct cannot be introduced but in case they are introduced that they only go to the question of consent. *(People v.*Shea, 125 Cal. 151, 57 Pac. 885; *People v. Johnson,*106 Cal. 289, 39 Pac. 622; *People*v. Glover, 71 Mich. 303, 38 N. W. 874.)

HUSTON, C. J.

— The defendant was convicted of the crime of rape, alleged to have been perpetrated upon the person of one Emma Anderson, an adopted daughter of the defendant, and who, at the time of the alleged crime, was some thirteen years and nine months of age. The only evidence of the commission of the offense is the testimony of the prosecuting witness, which is, in substance, as follows: *“1*do not understand the nature of an oath. I do not know what the clerk has just said to me. I understand he told me to tell the truth.I do not know what day of the week the 25th day of June was. I know clerk Nichols. I knew when he was up before the court.I was at home on that day.The day before that I was at home in Bellevue. Mr. Anderson was at home. I was at home on the evening of that day. So was Mr. Anderson. I went to bed that night between 9 and 10 o’clock. Mr. Anderson went to bed at the same time. His bed and mine are in the same room upstairs. We have slept in that room since last winter. Q. Did you see Mr. Anderson after you went to bed ? A. No, sir. Q. I am speaking about the day before clerk Nichols’ trial. Did you see him after you went to bed that night ? A. I saw bim after he went to bed. Q. Well, what did he do? A. He didn’t do anything. I was awakened during the night after that, by Mr. Anderson. He was in my bed. I first found out *708Mr. Anderson was there quite a few minutes after he was there. He was dressed in his drawers and shirt. He did not say anything when he came to my bed. Q. What did he do? A. Took part of his person and put it to my person. . Q. Did he put any part of his person in your person ? A. Yes, sir. He stayed there five or ten minutes, and then went to his bed.” This occurred, as prosecutrix states, on the 25th of June, 1889. She fixes the date by the time clerk Nichols was on trial at Hailey. This clerk Nichols seems to have been one of several young men who had been on terms of intimacy with the prose-cutrix. And this is all the testimony on the part of the prosecution which tends in the slightest degree to incriminate the defendant. The prosecutrix is not corroborated in the slightest particular. The only attempt at corroboration is by the testimony of Dr. Brown, called by the prosecution, who testifies that he made an examination of the prosecutrix, and that she had the appearance of having been “penetrated repeatedly.” It is not claimed that the defendant ever had connection with her but once. When she made complaint (which she says she first made to the prosecuting attorney) does not appear, but he had his preliminary examination on the eleventh day of July, 1899.

Were this an indictment at common law, or under the statute as it stood before the amendment raising the age of consent, it could not be contended, we apprehend, that the evidence is sufficient to warrant a conviction. Of course, it can be inferred from the statements of the prosecutrix that the defendant had sexual intercourse with her; but she does not say so, and we think that something more than inferences should be required to convict a man of seventy-seven years of age of a crime that will end his days in the penitentiary. The defendant is seventy-seven years of age. His physician, who has attended upon him for some fifteen or sixteen years, testifies that he is afflicted with a rupture, and is also suffering from an affliction of the spine, caused by an injury received in 1888, while building a house; and said physician further testifies that from his knowledge of the defendant’s physical condition it is his opinion that he is not, and was not at the time of the alleged offense, capable of having sexual intercourse. The impression seems to have obtained with *709some courts and juries that, since the enactment of the statute “raising the age of consent,” the simple charge of an act of sexual intercourse by a female within the prescribed age is all that is requisite to secure a conviction. We do not believe that the statute was intended to serve any such purpose. The case under consideration is an apt illustration — and we have had others— of the pernicious purposes to which such an interpretation of the law leads. A young hoiden, shown by the record to be, even at the age of fourteen years, or under, not *sans tache,*and whose reputation for truth and" veracity is entirely impeached, makes this charge against an almost imbecile old man, to whose charity she is indebted for her very existence since she was nine months old; and upon the entirely uncorroborated testimony of this monster of precocious vice, this old man is sentenced to wear out the few remaining years of his life in the penitentiary at hard labor, and this is called “the administration of the law in justice.” Upon the dubious, disjointed tale shown in the record we are asked to affirm a judgment which consigns an old man of previous good character to a felon’s grave— for that is what the sentence amounts to. We decline to do it.

Exception is taken to an instruction of the court to the jury which is as follows: “You are hereby instructed that you should not convict the defendant on the uncorroborated testimony of the prosecutrix alone, but such corroboration may be by facts and circumstances connected with or surrounding the case; in other words, corroboration is not necessarily the testimony of other witnesses.” The giving of this instruction, under the evidence in this case, was prejudicial. It. was virtually saying to the jury that the prosecutrix might be corroborated by her own statements. She made no complaint until a long time after the alleged offense. Her person presented no evidence to support her charge; on the contrary, the physician called by the prosecution testified that she had the appearance of having been “frequently penetrated,” and the record shows that she was in the habit of having intimate relations with, and being caught in compromising positions with, divers boys of about her own age. We think the instruction, except the first paragraph, was error, under the proofs in the ease. Undoubtedly the rule is that a *710defendant may be convicted of the crime of rape npon the uncorroborated testimony of the prosecutrix; but this is only so when the character of the prosecutrix for chastity, as well as for truth, is unimpeached, and where the circumstances surrounding the commission of the offense are clearly corroborative of the statements of the prosecutrix. This is the rule deducible from the authorities cited by the attorney general. (See *Tway v. State,*7 Wyo. 74, 50 Pac. 188; *People v. Wessel,*98 Cal. 352, 33 Pac. 216.) We think the correct rule is laid down in 3 Rice on Evidence, 826 et seq., also cited by the attorney general: “In prosecutions for rape it is very proper for the jury to be exceedingly cautious how they convict a defendant on the uncorroborated testimony of the prosecutrix, especially where there is evidence tending to impeach her credibility, for the experience of courts in modern times has amply attested the assertion of Lord Hale that the charge of rape is ‘an accusation easy to make, and hard to be proved/ and harder still to' be defended by the party accused, though never so innocent.’ (1 Hale’s Pleas of the Crown, 635.)” The judgment and sentence of the district court are reversed, and, as we cannot see that the further prosecution of the defendant will be conducive of any good, it is ordered that the defendant be discharged from custody.

Quarles, J., concurs.