I find myself unable to concur in the majority opinion.
Instruction No. 9 is not erroneous, and is not, therefore, subject to criticism in that by that instruction the court withdrew from the jury the right to determine whether evidence, to which reference is made in the instruction, tended to show the commission of other acts of a similar nature to *Page 720 the one charged in the information. The instruction does not say that there is evidence tending to show the commission of other acts of a similar nature, but simply states that there is evidence which may tend to show the commission of such other acts. In using the words "may tend" the court was not "assuming" that the evidence did tend to show the commission of acts of a similar nature, and it is submitted that a fair construction of the instruction does not warrant the conclusion that "it assumed facts as having been proved that were not shown to exist." The facts warranted the giving of instruction No. 9, since there was evidence of other acts, of an unprintable nature, which at least had a tendency to corroborate the testimony of the prosecutrix and to show the relation and familiarity of the parties, as well as the licentious disposition of appellant. (State v. Lancaster,10 Idaho 410, 78 P. 1081.)
The majority opinion holds that the judgment must be reversed, upon the authority of State v. Bowker, 40 Idaho 74,231 P. 706, for the reason that instructions Nos. 6 and 7 are contradictory and irreconcilable. The facts in State v. Bawker are entirely different from those in the case at bar. In the Bowker case it is held that there was no corroborating evidence; in the instant case it is admitted that there is ample corroborating evidence, which being true, the jury could not have convicted appellant upon the uncorroborated testimony of the prosecutrix. In the course of the opinion in the Bowker case it is said:
"A careful inspection of the record in this case fails to show any fact or circumstance tending to corroborate the testimony of the prosecutrix other than the fact that appellant invited her to ride with him, and instead of taking her directly to her home they drove some distance beyond there, and hence the opportunity for the commission of the offense was present. This does not constitute a sufficient corroboration under the rule announced by the authorities as to what is sufficient corroboration, and therefore the evidence is insufficient to support the verdict and judgment thereon." *Page 721
Other cases besides that of State v. Bowker, supra, are relied upon by the majority, but, in my opinion, are not in point.
There is authority for the giving of instruction No. 6. See Branson's Instructions to Juries, p. 586, sec. 663, where practically the same language is used. See, also, People v.Keith, 141 Cal. 686, 75 P. 304. While it is true that in instruction No. 6 the court charged the jury that if the testimony of the prosecutrix created in the minds of the jury a satisfactory conviction and belief, beyond a reasonable doubt, of defendant's guilt, it was sufficient of itself, without other corroborating circumstances or evidence, to warrant a verdict of guilty, unless her testimony was contradictory or her reputation for truth was impeached, the prosecutrix stood unimpeached for truth and chastity, her testimony was not contradictory, and there was corroborating evidence of other facts and circumstances, other than the testimony of the prosecutrix, which tended to connect the accused with the commission of the crime. The instruction did not include what was subsequently stated in instruction No. 7, that, even though the prosecutrix was unimpeached, other facts and circumstances of the offense must have been shown to corroborate her statements. Conceding that instruction No. 6 was not complete, when read in connection with all of the instructions given, and in the light of the record, the giving of instruction No. 6 was not prejudicial error. It was not necessary that the prosecutrix be corroborated by the testimony of other witnesses.
"It is well settled that one may be convicted of rape upon the uncorroborated testimony of the prosecutrix, if the jury believes her story. (People v. Mayes, 66 Cal. 597, 56 Am. Rep. 126, 6 P. 691; People v. Logan, 123 Cal. 414, 56 P. 56;People v. Benc, 130 Cal. 159, 62 P. 404; People v. Preston,19 Cal. App. 675, 127 P. 660; People v. Bernon, 29 Cal. App. 424,155 P. 1021; People v. Akey, 163 Cal. 54, 124 P. 718." (People v. Sylvis, 72 Cal. App. 632, *Page 722 237 P. 802; People v. Jones, 76 Cal. App. 144, 244 P. 101.)
From the entire record it is clear that the jury were not misled by reason of the giving of instructions Nos. 6 and 7.
Had appellant been charged with the crime of robbery a conviction would be upheld upon the uncorroborated testimony of the prosecuting witness, provided the jury were satisfied, beyond a reasonable doubt, of appellant's guilt. In rape, under the majority opinion, we have a different rule as to the sufficiency of the proof. The prosecutrix stands unimpeached for truth and chastity; her evidence is uncontradictory, and the jury are satisfied, beyond a reasonable doubt, of appellant's guilt. Under the rule announced it is the duty of the court to instruct the jury that a conviction cannot stand in the absence of corroboration of the prosecutrix. She stands impeached unless corroborated. A female outraged, in the absence of corroborating evidence, is without redress under the rule announced. There should be no different rule in a rape case from any other criminal ease, since it falls within no exception, and if the jury are satisfied, beyond a reasonable doubt, that rape has been committed, and that the defendant is guilty thereof, and there is sufficient competent evidence to support the verdict, the verdict should be upheld.
The prosecutrix was a child of tender years. She detailed the facts and circumstances of the outrages committed upon her. The jury were satisfied, beyond a reasonable doubt, of the truth of her story, which was corroborated, and there is no question under the evidence contained in the record, of appellant's guilt. To justify a reversal in a case of this character something more than a mere conflict in the instructions should afford a basis therefor.
The rule is too well established to require citation of authority that, in considering instructions of a trial court to a jury they must be considered as a whole, and error cannot be predicated upon a single instruction or a part thereof which may be objectionable when not considered in connection *Page 723 with the instructions as a whole. Even though an instruction is erroneous, and ordinarily the error would be material, yet if the circumstantial evidence of the defendant's guilt is satisfactory, that is, such as ordinarily produces moral certainty, or conviction in an unprejudiced mind, and the result could not have been different had the instruction been omitted, the case will not be reversed because of such erroneous instruction. State v. Marren, 17 Idaho 766,107 P. 993, State v. Silva, 21 Idaho 247, 120 P. 835, State v. Brill,21 Idaho 269, 121 P. 79, wherein it was held that if the evidence of the defendant's guilt is satisfactory, that is, such as ordinarily produces moral certainty or conviction beyond a reasonable doubt in an unprejudiced mind, and the result would not have been different had the instruction been omitted, the cause will not be reversed because of such erroneous instruction, where it appears that the court has correctly instructed the jury as to the law of the case in other instructions. To the same effect, see State v. Ward,31 Idaho 419, 173 P. 497.
It is clear to my mind that the verdict rendered by the jury was not based upon the uncorroborated testimony of the prosecutrix; nor is it suggested in the majority opinion that there was not ample corroborative evidence. True, error may be found, but in order to justify a reversal it must have been prejudicial error, such as denied appellant a substantial right. From a consideration of the entire record there is, in my opinion, no prejudicial error, and the judgment of conviction should be upheld.