Concurring. — The discussion of C. S., see. 8968, is beside the mark. The venireman was taken sick and excused before being accepted as a juror. The stat*337ute in question is applicable only in case of sickness of a juror, and, in the sense in which that term is therein used, those only are jurors who are accepted as such and sworn to try the cause.
Instruction numbered 11, mentioned in the foregoing opinion, is as follows:
“The court instructs the jury that it is their province to determine the weight to be given the testimony of a female upon whom it is alleged in an information that rape has been committed, and who testifies to the facts' and circumstances of such rape as of any other witness testifying in the ease; and if such testimony creates in the mind of the jury a satisfactory conviction and belief, beyond a reasonable doubt, of the defendant’s guilt, it is sufficient of itself, without other corroborating circumstances or evidence, to justify a verdict of guilty of rape on the trial of this ease.”
Instruction numbered 12 is devoted, largely, to the testimony of the prosecutrix and the matters to be taken into consideration in weighing it, and the weight to be given it, and in that numbered 13 the jury is again informed it is not essential that she be corroborated by the testimony of other witnesses as to the particular act constituting the offense.
Instruction numbered 18, which appears to have been given at appellant’s request, is as follows:
“The court instructs the jury that it is their province to determine the weight and credibility to be given the testimony of a female upon whom it is alleged in the information that a rape has been committed, and who testifies to the facts and circumstances of such rape, as of any other witness testifying in the ease, and the general rule is that a conviction may be had upon the uncorroborated testimony of a prosecutrix. However, if the reputation of the prosecutrix is impeached for truth and veracity, or if the prosecutrix has given contradictory testimony or made contradictory statements in any material matters, it then becomes necessary for the state to show by corroborative circumstances or evidence which in itself tends to show that a crime has been *338committed, and which, when taken with the testimony of the prosecutrix, convinces the jury beyond a reasonable doubt that the defendant is guilty before a conviction may be had.”
This court said in State v. Rogers, 30 Ida. 259, at 272, 163 Pac. 912, 916: “We think the better rule for the court to follow is not to single out any special witness personally and burden his testimony with any suggestions which might indicate to the jury that in the opinion of the court- such witness was liable to testify falsely. Instructions as to the credibility of a witness should be general, and apply .equally to all of the witnesses for the state and the defendant alike. Because a witness may be the defendant is no particular reason why he should be visited with condemnation upon the one hand or clothed with sanctity upon 'the other. He is before the court as a witness and should be treated by both the court and the jury just as other witnesses are treated— no better and no-worse. And the giving of such instruction cannot be regarded as otherwise than erroneous.”
That rule applies to the testimony of the prosecutrix in a rape ease the same as to that of witnesses generally, and the action of the court in making the comments above quoted was erroneous*.
Appellant, by asking for one of the instructions in which the objectionable comment was contained, has brought himself within the rule that one procuring error to be committed cannot take advantage of it.