I concur in the judgment of reversal, although I am not as entirely clear that it is correct as I would like to be. I am the more inclined to concur because it seems likely that the jury erroneously based their verdict more upon the circumstance that neither the prosecuting witness nor the appellant testified, than upon the sufficiency of the evidence actually introduced. The girl may have refused to testify because she could not truthfully incriminate the appellant; and, as to a defendant in a criminal action, under the code, “His neglect or refusal to be a witness cannot in any manner prejudice him nor be used against him on the trial or proceeding.”