Appellant was convicted of the crime of statutory rape. Two errors are assigned, the insufficiency of the evidence and the giving of the following instruction:
"You are advised, gentlemen of the jury, that in a case of this character, to-wit: where rape is charged, a conviction may be had upon the uncorroborated evidence of the prosecutrix, but if the evidence of the prosecutrix is of a contradictory nature, or her chastity or reputation for truthfulness is impeached, her testimony must be clearly corroborated by surrounding circumstances before a conviction can be had."
The giving of such an instruction was held to be prejudicial error in State v. Hines, 43 Idaho, 713, 254 P. 217. The writer of this opinion was not in accord with that holding but a majority of the court has spoken so a new trial should be had.
In fairness to the trial court it should be stated thatState v. Hines, supra, was decided after the case herein was tried.
The judgment is reversed, and since a new trial is granted we will not comment upon the weight of sufficiency of the evidence.
Taylor and T. Bailey Lee, JJ., concur. *Page 272