dissenting.
My view of the evidence is radically different from that expressed in the opinion of the majority. The complaining Avitness testified in direct and positive language that defendant committed the offense with which he is charged. Some of the facts are not open to controversy. Defendant was a married man. The complaining witness was unmarried and was under 18 years of age. She had been debauched. She gave birth to a child September 19, 1908. Most of the time from December 22, 1907, until the child was born, she lived in defendant’s home. There was opportunity for commission of the offense. In addition to these facts, she gave nauseating, details which prove defendant’s guilt, unless she testified falsely. Whether she told the truth or not was a question for the jury. I dissent from the conclusion that her story is either untrue or unbelievable in the face of the verdict of the jury.
I am also pronounced in my conviction that the corroboration of her testimony by that of other witnesses is sufficient, if any is required. By the testimony of either defendant or his wife, or both, these facts appear in the record: Complaining Avitness went into defendant’s home December 22, 1907, as a companion for his wife, without stipulated compensation, and had only one dress at the time. A feAV days after Christmas he gave the girl a ring, and in April folloAving defendant’s wife gave her a dress, which Avas described as a “Christmas present.” During the time she lived at defendant’s home she received clothing Avorth $8.or $10. These facts are shown independently of the testimony of complaining witness.
A practicing physician at Shelton testified that defendant and his Avife Jbrought the girl to his office April 23, 1908, that he examined her, and told them she had *199been pregnant four or five months. In testifying the physician also said that, when defendant went ont of the office, he said: “They were trying to lay it onto him.” The import of this expression is that defendant in some way previously knew the girl’s condition, or had been or was about to be accused of responsibility therefor. He nevertheless took her to his home and kept her there, ■where she was no longer needed as his wife’s companion; his father and mother in the meantime having joined defendant’s family. This proof does not rest on the testimony of the complaining witness. Defendant admitted on cross-examination that the complaining witness from April 2-1, 1908, until August 30, 1908, slept in the same room where he and his wife slept, though in a separate bed. During that time at least her condition was known to defendant. This is not her proof. I>y defendant’s own testimony it is shown that he went to Omaha August 30, .1908, with no companion, except the complaining witness, took her car-riding there, kept her over night in a hotel, though in a room separate from that occupied by him', and the next day took her to the Salvation Army Rescue and Maternity Home, where he arranged for her accouchement, left her there, and returned to see her the following day. The matron of the home was sworn as a witness, and said defendant paid the girl’s lying-in expenses to the extent of $25. She also stated: “I asked him if he would be willing to take the child, and he said that it would be quite a burden on him, but, if necessary, he supposed that he could do it and would do it.”
There is proof tending to show that defendant prior to that time had part in procuring from the complaining witness a statement showing that the paternity of the unborn child was traceable to the girl’s father. The matron testified defendant said he would take the child, if necessary. What necessity would induce him to accept in advance the burden of keeping a child of incestuous coition and shocking depravity? I am unwilling to say that the matron testified falsely,- or that her statement *200had no proper, evidential bearing on the truth of complainant’s testimony that defendant was guilty of the offense with which he was charged. For Anything appearing in the record, the matron, when she gave her testimony, may have been influenced alone by a desire to tell the truth. This part of the story was not told by the complaining witness. To my mind the finding that there is nothing in the record that tends to corroborate her testimony disregards both the record and the rules of evidence. If corroboration is necessary, and if the circumstances narrated do not corroborate the direct evidence of defendant’s guilt, it may as well be understood that punishment for adultery is practically at an end. Offenders of this kind do not invite neighbors to be witnesses of their unlawful conduct or commit the offenses in the presence of others.
According to my understanding of the proofs and the law, there is abundant corroboration of the testimony of the complaining witness, without reference to the turpentine episode. In this vieiv of the record, the instruction that the giving of the turpentine was corroborating testimony ■ was not a prejudicial error, I solemnly protest against the condemnation of the state’s evidence, and dissent from the conclusion of my associates.