I concur in the judgment. The sexual intercourse, if any, between the prosecutrix and defendant was with her full consent, and it was therefore essential to show that she was under sixteen at the date of such intercourse. The evidence on this point was exceedingly weak. The prosecutrix testified, in effect, that she was between fifteen and sixteen at the date of the alleged offense, but it was clearly proved, and practically admitted by her, that she had made statements to a number of persons on different occasions which if true proved that she was over sixteen, and she offered no explanation of this discrepancy. Her mother testified on direct examination that the prosecutrix was between fifteen and sixteen, but on cross-examination could not give the year of her birth. The trial was in Fresno, where the girl was born, and where it is reasonable to suppose witnesses could have been found to fix the date of her birth, but no evidence was offered to corroborate that which I have stated.
Weak as the testimony was, however, upon this and other points, the judgment and order of the superior court could not perhaps be reversed here upon that ground alone, but certainly the case is one in which the refusal of proper instructions cannot be excused upon the ground that such rulings were not prejudicial.
Among other instructions requested by defendant, and refused by the court, were the following: —
"If the jury believe from the evidence that at the time the offense is alleged to have been committed the prosecuting witness made no outcry and didn't immediately complain to others, but concealed it for several months and then only told it by reason of threats and promises, then the jury should take this circumstance into consideration with all the other evidence in determining the credibility of such witness and whether a rape was in fact committed or not."
"You are further instructed that the defendant is presumed to be innocent until the guilt is established by such evidence as will exclude every reasonable doubt. Therefore *Page 324 the law requires that no man shall be convicted of a crime until each and every man of the jury is satisfied by the evidence in the case, to the exclusion of every reasonable doubt, that the defendant is guilty as charged. So in this case if one of the jury after having duly considered all the evidence and after having consulted with his fellow-jurymen should entertain a reasonable doubt as to the truth of the charge, the jury in such case cannot find the defendant guilty."
The first of these instructions contains a proposition that might very properly have been given to the jury if it had been clearly stated by itself. There was evidence to the effect that the prosecutrix was induced by threats of imprisonment to make the accusation, and if the jury believed this evidence they should have taken it into consideration in determining her credibility. But the court was perhaps justified in refusing to give the instruction as framed because it included another proposition which has no application to the statutory offense — concealment by a consenting female being a circumstance wholly lacking in the significance of the same fact in the common-law offense of rape. But the second of these instructions is correct in point of law, and was pertinent to the evidence in the case. It is in substance identical with the instruction commented on inPeople v. Dole, 122 Cal. 495,1 where it was said: "This is a correct statement of the duty of a juror, and should have been given. If any juror needed an instruction upon this point it was harmful to refuse it; if no juror needed the instruction it would have been harmless to give it."
I concur in the judgment of reversal.
1 68 Am. St. Rep. 50.