I think the defendant is entitled to a new trial. The date of the alleged offense, both in the indictment and in the testimony of the State's two witnesses, was the night of February 16, 1926. The place of the crime was testified to as being at the home of Paul Ewing, four miles south of the town of Creston. The defendant, as a witness, denied the commission of the offense at any time, and testified that he had never seen the prosecuting witness at any time prior to his arrest, on or about March 6th. He also gave a detailed account of where he was and what he did on the evening of February 16th, from the time he quit work, at 6 o'clock, until he left the home of H.S. Britten, at about 12 o'clock. This line of evidence is referred to in the record as an alibi, and it is immaterial for the purpose of our present consideration whether it was strictly so or not. The defendant testified that he attended a little card and radio party at the home of H.S. Britten that evening, and was there until after midnight. The events testified to by the prosecuting witness were alleged to have occurred between 9 o'clock and midnight. The testimony of the defendant was supported by that of *Page 840 half a dozen apparently disinterested witnesses, who were present at the Britten home on the date named.
In submitting the case to the jury, the court gave an instruction to the effect that the date of the commission of the offense was not material, provided it was committed at any time within 18 months prior to the indictment. This instruction took on a particular significance by reason of the cross-examination of the defendant's witnesses, who testified to the presence of defendant at the Britten home on that particular date. The following cross-examination of Mrs. Crago is illustrative:
"Q. The indictment in this case was returned the 22d day of April, 1926. Did you know where Arthur Davenport was any night within three years preceding that date except this one Tuesday night, February the sixteenth? A. No, I couldn't say for sure about any other night. He may have been there, but not in my presence. Q. Any time near that date as charged in the indictment? A. No. Q. You don't know anything about that? For all you know about this person might have committed rape at some time within three years preceding this twenty-second day of April, 1926? A. Yes. Mr. Wisdom: That is all."
The State made no effort to meet the testimony of the defendant's witnesses in support of the alleged alibi, except by this method of cross-examination. In order to find the defendant guilty, the jury must have discredited the undisputed evidence of all these witnesses, or else it must have believed that the prosecuting witness was mistaken in the date, and that the offense charged must have been committed on another date, within the period of limitation. In State v. Luce, 194 Iowa 1306, we condemned this form of instruction as inappropriate, in a case where the testimony of the State fixes a particular date and the testimony of the defendant accounts for himself as of that date. In considering the instruction in that case, we said:
"It is abstractly correct; but why should it be used when a specific date is not only charged in the indictment, but is sustained without contradiction in the evidence? Under the evidence in the case at bar, the alleged crime, by whomsoever committed, was committed on June 16, 1919, and on no other date. The defendant, therefore, had a right to direct his defense of *Page 841 alibi to that date, and to show where he was at that time. In that sense, the exact date was material, though the instruction under consideration charged that it was not material. The defendant cites respectable authority to the effect that, in such a case, the instruction should not be given."
In that case, the date of offense charged was June 16th. The alibi covered dates from June 1st to June 19th. Between such dates the defendant contended he was continuously in the state of South Dakota. The court in a later instruction recognized the claimed alibi as between said dates, and instructed the jury that, if it was proved, then it was a complete defense. Because of this curative feature of the instruction, we declined to reverse. The State contends herein that the same condition exists in this case. It relies upon Instruction 13 given by the court, which contained the following paragraph:
"If he has shown, as hereafter stated, that, at the time ofcommission of the offense charged, he was at such a distance from the place where the same was committed as that he could not have participated in the commission of the same, this will, of course,entitle him to an acquittal."
It will be noted that this instruction has no curative effect. This leaves the "time of commission" to be found by the jury; and under Instruction No. 3, they could fix such time upon any date within 18 months. I think the instruction in this case, upon this record, was clearly prejudicial.
Its prejudicial character is greatly emphasized also by the state of the evidence in the record. The State relies upon the evidence of the prosecuting witness, Bernice Powell, and her companion, Helen Crist. Each was 14 years of age, and each discloses herself as being appallingly depraved. Great improbabilities appear in their recital. The defendant testified that he had no acquaintance with them. They purported to identify him in the court room as the person who was present at the alleged offense. They alleged the first meeting to have been at the skating rink in Creston; that they and another girl companion and three men drove from the skating rink to the Ewing home by one trip in a Ford roadster. This of itself looks like a grave exaggeration. Their further testimony is that this defendant committed *Page 842 three sexual offenses there, within a brief period, twice with Helen Crist, and once with the prosecuting witness. The defendant is a young man 23 years of age. He put his character in issue. Five witnesses testified to his good moral character. This testimony was wholly uncontradicted. And this is true of the testimony of the witnesses who were with the defendant at the Britten home. The evidence of and for the defendant is consistent throughout. That for the State carries great improbability and much inconsistency.
Upon this record, I think there ought to be a new trial granted.
ALBERT, C.J., and De GRAFF and GRIMM, JJ., join in the dissent.