dissenting.
The opinion of the court written by Mr. Chief Justice Campbell does not treat the points presented. Mr. Jus*10tice Butler, specially concurring, does discuss the errors assigned, and, rightly determining in at least two instances the trial court erred, gravely affirms the judgment. It is Mr. Justice Butler’s opinion that obtains sufficient approval of the justices to work affirmance. I dissent from the illogical and unsound result.
Aside from the question of whether defendant was guilty of the primary act involved in the offense charged, the age of the prosecuting witness was the all important issue. Mr. Justice Butler says that error obtained when the court admitted a certain so-called birth certificate. Of course so. The authorities are as one on that point. But, says our distinguished brother, there was other evidence which justified the verdict on the point. Assuming so much, the learned jurist could have profited by reading his own language in Reppin v. People, 95 Colo. 192, 208, 34 P. (2d) 71, 78. In no sense was the incompetent certificate harmless. DePriest v. People, 64 Colo. 358, 171 Pac. 1004; Connor v. People, 18 Colo. 373, 35 Pac. 159, 25 L. R. A. 341, 36 Am. St. Rep. 295. “Error is presumed to be prejudicial unless it affirmatively appears that it is not.” Dekelt v. People, 44 Colo. 525, 99 Pac. 330. Looking at the prosecuting witness the jurors might well have discounted her story and that of her mother as to her age, but when a solemn writing is produced in close corroboration of their testimony, ruled by the trial court in their hearing to be competent (held in the opinion here to be incompetent), it does not lie with reviewing ministers of justice to say it did not materially enter into the reckoning of the jurors. Indeed, the incompetent certificate was of such character that it virtually foreclosed further consideration by the jury of the issue which it was calculated to establish. Erroneous, but not hurtful, says the court. I cannot so regard it.
In further support of its disposition of the case, the court says the trial judge erroneously rejected a certificate that was competent, and, therefore, the incompetent one could well take its place. Aside from the fact that *11record of that which constituted the rejected certificate had not been made as required by statute, as the trial court held, the district attorney neither excepted to its rejection nor assigned cross-error on the point. The question was neither presented nor argued. How, then, do we know the trial court erroneously rejected the certificate? A sheer dictum! Of piece with the foregoing is Mr. Justice Butler’s assertion that the statute providing for record of marriage certificates and their manner of exemplification for evidentiary purposes, is parallel to the birth certificate statute, and since, as he sets forth, “no one would contend” that a certified copy of a marriage certificate would be incompetent, so the rejected certified copy of the birth certificate here was competent. The trouble is that in addition to the fact that the two statutes differ in essential details, we have never passed on either of them and neither is involved here. An emphasized dictum! It is pertinent to add that the statute (C. L. 1921, §982) requires attending physicians to file birth certificates within ten days after the event, and by section 990, same compilation and act, “a certified copy of the record of any birth * * *, registered under provisions of this act * * *, shall be prima facie evidence * * * of the facts therein stated.” Here, the certificate was filed, not within ten days, as required by the statute, or within any reasonable time thereafter, but some twelve years subsequent to the claimed happening. To say departure from statutory requirements to the extent shown “does not affect the admissibility of a certified copy,” as the opinion holds, I think is not justified.
Mr. Justice Butler says that instruction No. 10, (point 4 of the concurring opinion) “does seem to be open to the defendant’s criticism,” and cites Wigmore in support of that view. But as in the case of the error already commented upon, it is held to be harmless. I protest such disposition of a vital issue.
At point 3 of Mr. Justice Butler’s opinion a requested instruction is set forth which was rejected. The purport *12is that in determining the age of the prosecuting witness, the jury could consider her appearance in the court room. The authorities are generally to the effect that such an instruction is proper. Quotations from Wigmore in Judge Butler’s opinion definitely hold so, and an array of cases cited by plaintiff in error’s counsel sustains Wigmore’s deductions. I find nothing in the attorney general’s brief to the contrary. The disposition which the court makes of the point is hypercritical, and in my view unjust.
Finally, not gainsaying the existence of error, the court has resort to section 7103, O. L. 1921, a statute calculated to save a successful prosecution from the effect of harmless error. My notion of the importance of correct procedure in the common-law conception of justice is such that I cannot subscribe to the obvious wrong so compassed. I decline to have part in rape of the law.
Mr. Justice Holland concurs in this opinion.