— The defendant was convicted of the crime of rape, alleged to have been committed upon the person of his daughter, aged about fifteen years, and sentenced to the state penitentiary for a period of twenty-one years; from which judgment, and from the order of the court overruling his motion for a new trial, defendant appeals.
Appellant raises several objections to the constitutionality of the act under which he was indicted, both as to the sufficiency of its title and the manner of its enactment. As an examination of the record satisfies us that the judgment of the district court will have to be reversed upon the merits, and as the objections to the statute have been remedied by subsequent legislation, we do not feel called upon to discuss or pass upon those questions, but will consider the' case upon its merits, as the same appear in the transcript. It is a rule, we believe, of very general recognition, that courts will not, where the decision of a case does not necessarily involve the passing upon the constitutionality of a statute, assume to do so. This court said, in State v. Ridenbaugh, 5 Idaho, 710, 51 Pac. 750; “An opinion obiter as to the validity of said act being unnecessary, all authority, as well as reason, forbid that we should express our views as to the validity of said act until that question becomes necessary in a case properly before us.” And the position taken by the court in that case is accentuated in the case at bar by the fact that the questions raised have been eliminated by the action of the legislature in re-enacting the statute. While the changing of the age within which the party against whom the offense of rape is alleged to have been committed is capable of consenting thereto has eliminated *498from tbe offense in sncb ease the necessity of proving the employment of any of the various means mentioned in the statute for accomplishing such crime, and limits the proof in such cases to the committing of the act of sexual intercourse, and the age of the alleged victim, it is not to be presumed that the nature and character of the evidence essential to the establishment of the offense charged are done away with, or materially changed. The remark of Sir Mathew Sale in regard to the character of the offense of rape, that "it is an accusation easy to make, and hard to be proved, and harder still to be defended by the party accused, though ever so innocent,” receives additional force by reason of such changes in the law as make that the highest grade of felony which, before such change in the statute, was, or might have been, a minor offense. It is doubly incumbent upon the courts in prosecutions for this offense under the statutes as they now stand to see to it that every element of the offense, within the narrow limits to which the proof is now confined, be established beyond a reasonable doubt, and that the rule of the statute which was enacted for the protection of female virtue be not made a means whereby the vindictive wanton may add further infamy to her iniquitous calling bv making it a means of extortion and blackmail, or the medium of wreaking vengeance for some real or imaginary wrong.
We have examined the record in this case with much care. The crime charged is the most heinous known to the law. It seems a strange thing to say, but our experience almost compels us to the belief that, the more monstrous the crime charged, the more readily are juries inclined to give credence to it, and the less proof is required to establish it. In this case, the only evidence against the defendant was the testimony of the prosecutrix, a girl some fifteen years of age, and, judging from the testimony in the case, not of the most exemplary or amiable character. She is not in a single particular corroborated; on the contrary, she is flatly contradicted upon the most material points by several witnesses, no one of whom was contradicted or impeached, or sought to be. We think, before a father should be immured in a prison for what *499in this case virtually amounts to imprisonment for life, his conviction should be supported by something more than the uncorroborated statements of a wayward and vindictive girl, whose proclivities, it is shown by the evidence, tend not in the direction of virtue.
One of the grounds upon which' a new trial was asked by the defendant was the discovery of new and material evidence, and in support of that claim the appellant files the affidavit of one Wilbur M. Guile, who testifies in said affidavit that some time in March, 1897, said Nancy Baker (the prosecutrix) said to him, in the presence of his wife, that there was no truth in the charge she had made against her father. This affidavit is supported by that of Mont Oliver, the late sheriff of Ada county, who states that he knows Wilbur Guile, who made the foregoing affidavit, and that “from my knowledge of said Guile T here declare that he is both truthful and honorable in a very high degree.” We do not consider that a review of the evidence in this case would serve any good purpose. It is sufficient to say that we have carefully gone through the entire transcript, and we are compelled to say that we do not consider the verdict in this ease warranted or supported by the evidence. The judgment of the district court is reversed, and the cause remanded.