dissenting.
I dissent from the opinion of the majority.
1. There was no evidence tending to corroborate the testimony of the prosecutrix that she was chaste. I have read all the evidence. The girl and the man talked together after the Morrison family went upstairs to retire. Up to that time I am unable to find anything which tends to corroborate her story. Defendant was a young married man, and while he visited with Morrison he also talked to the girl in the sociable and easy way which is not uncommon in the country, where people do not isolate themselves, but visit and talk together. It was not at all strange that the defendant and Morrison should visit each other. They were in the habit of doing so. They exchanged work together at times. They were probably the very best of friends. I am unable to fin'd any sort of corroboration in the story recited by the prosecutrix. If the crime was committed, as she says it was, it is difficult to understand how she could have been chaste at that time. She testified that they went into the front or south room, and then that he blew out the light which was burning there. She got a rocking chair and sat in it. That she did not intend to go away is apparent from the fact that she sat in the chair and did not go upstairs. If she had been a good girl and chaste, she would have cried out, and Mr. and Mrs. Morrison, who were lying awake in the bed upstairs and only a few feet distant from her,, would have s been down stairs in two or three seconds. If the prosecutrix was guilty, then the man was guilty, but he could not be guilty of rape, for the woman was not chaste.
2. The charge against the defendant is that the girl was under the age of 18 years, to wit, of the age of 15. years; that she was not previously unchaste; that the defendant unlawfully and feloniously made an assault upon her; and that he unlawfully and feloniously ravished and *476carnally knew her. The charge is under the last clause of section 8588, Rev. St. 1913, and contemplates that the act is done with the consent of the prosecutrix. The information does not allege that the act was committed “with her consent.” The necessary provision of the statute is left out. The necessary facts therefore were not in the information. The language of the statute is, “shall carnally know or abuse any female child under the age of 18 years with her consent.” In Bailey v. State, 57 Neb. 706, it is said in the body of the opinion: “To sustain a criminal conviction it is not enough for the state to show that the person indicted has violated the spirit of the statute, but the evidence must show beyond a' reasonable doubt that he has offended against the very letter of the law.” In Burk v. State, 79 Neb. 241, it is said in the syllabus: “The evidence should show, beyond a reasonable doubt, that she was not previously unchaste.” There was no evidence touching this subject. In the body of the opinion in Burk v. State, supra, it was said that, if the case had to be tried over again, it would seem necessary for the state to produce some corroborating evidence as to the principal fact, “and of the previous chastity of the prosecutrix.”
3. The fourth instruction is to effect that the offense must be committed with a “female under the age of 18 years with her consent.” The defendant was not tried for the offense described in the statute, and he was not tried for-the offense set out in the instruction. To pro' ceed against the accused as if he unlawfully and feloniously ravished and assaulted her could not well have been otherwise than to the prejudice of the defendant. He was tried for violence.
4. Section 6 of the instructions given by the court contains the following: “The doubt which the juror is' allowed to retain in his own mind, and under which he should render his verdict of not guilty, must always be a reasonable one. A doubt produced by undue sensibility in the mind of any juror in view of the consequences of his verdict, is not a reasonable doubt, and a juror is not *477allowed to create sources of material doubt by resorting to trivial or fanciful suppositions and remote conjectures as to possible states of fact different from that established by the evidence. Hence, if, after a careful and impartial consideration of all the evidence, you can say that you feel an abiding conviction of the guilt of the defendant and are satisfied to a moral certainty, a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously on the truth of the charge made against the defendant, then, and in that event, you are as jurors satisfied beyond a reasonable doubt. A reasonable doubt does not consist of possible or conjectural doubt, but a doubt that would justify an acquittal must be reasonable, and it must arise from a candid and impartial investigation of all the evidence in the case.”
To say that a juror must justify himself for what he does as a juryman is to make him an object of suspicion. The tendency of that sort of an instruction is to intimidate the juror. That instruction originated in the anarchist cases tried in Chicago. Apparently it was framed to compel the jurors to disregard the doctrine of reasonable doubt.
5. In instruction 11, given by the court on its own motion, it is said that the prosecutrix need not be “corroborated” by the testimony of other witnesses; that it is sufficient if she shall be corroborated as to the material facts and circumstances which tend to support her testimony, and from which, together with her testimony as to the principal fact, the inference of guilt may be drawn. Some rule should have been laid down by the trial judge enabling the jury to rest their conclusion- upon facts shown tó exist in the case not dependent upon the testimony of the prosecutrix. This was not done.
6. The alleged facts, as the prosecutrix recites them do not seem probable. According to her testimony, Mr. and Mrs. Morrison went up to bed. They put a light on the bureau at the head of the stairs. There were no doors *478in the way, and the light shone down to where the prosecutrix and the defendant were. There was also a' stovepipe hole up through the ceiling. With the light shining-down the stairway where Morrison and his wife had just retired to bed and were then awake, is it probable that the prosecutrix and the defendant would have taken their chances of discovery? “Q. Well, wait a minute; it shined down while they were up there? A. I suppose it did. Q. And you could see the light? A. No, I could not see the lamp, I could see the light. Qi. Well, that is what I asked you, the light shone down stairs on you and Harry Whetstone, didn’t it? A. Yes, sir. Q. And if either Mr. or Mrs. Morrison looked down from up there, they could see you standing there? A. Well, we wasn’t there very long.”
Mrs. Morrison testified that there was a light up at the head of the stairs nearly all the evening, and that it shone down where the defendant and the prosecutrix were standing. If the testimony of the Morrisons is truthful, the probability of the defendant’s guilt would seem to be remote. Whatever the facts may be, they are not shown by the evidence to have had intercourse.
7. This man should not be sent to the penitentiary on the evidence presented against him. If this man is guilty of anything, it is adultery. There is no penitentiary sentence for that. Of course, we ought not to disregard legal rights. “A single act of sexual intercourse by a married man with an unmarried woman constitutes the crime of adultery.” State v. Byrum, 60 Neb. 384. This defendant-can be prosecuted for adultery under the facts shown, and, if found guilty, could be imprisoned in the county jail not exceeding one year. Section 8767, Rev. St. 1913.