dissenting.
Defendant was convicted of committing a rape upon a female child. I am convinced that the .jury based their *541verdict alone on proper and sufficient evidence of guilt, and that the instruction technically condemned by the majority did not mislead them or affect their deliberations to the prejudice of defendant.
There is no law in Nebraska requiring corroboration of a prosecutrix to sustain a conviction for rape. The supreme court never had any power to make such a law, Laws binding upon the supreme court in dealing with felonies and the rules of evidence in establishing them may come from three sources of power: (1) Constitutional provisions adopted by the people. (2) Direct enactments of the legislature. (3) The common law of England adopted by legislative enactment. The doctrine invoked by the majority to set aside the conviction of a man accused of committing a rape upon a female child did not come from any legitimate source of power. It is not in the Constitution. It is not in the statutes of Nebraska. It is not in the common law. Obviously its first announcement by this court was an error. Blind adherence thereto should be terminated by a correction of the error. In speaking of the rule followed by the majority, the supreme court of Oklahoma said:
“It is true that there are some decisions based upon special statutes which hold that Corroboration of the prosecutrix is necessary, but, in the absence of such a statute in this state, we could not agree to establish, a rule so repugnant to justice, constituting such a shame upon our civilization; so insulting to decency and so pregnant with danger to weakness and virtue.” Reeves v. Territory, 2 Okla. Cr. Rep. 351, 360.
In Brenton v. Territory, 15 Okla. 6, 11, the same court said:
“The rule of requiring the prosecutrix to be corroborated in rape cases is followed, it is believed, in but one state and one territory, except where adopted by statute, viz., Nebraska aud New Mexico. With criminal procedure acts like ours, the states of California, Florida, North Dakota, and Montana have held that such corroboration is not required, and the same is held by the courts of *542highest resort in Alabama, Arkansas, Arizona, Georgia, Illinois, Kentucky, Michigan, Minnesota, Missouri, Mississippi, Oregon, Pennsylvania, Texas, Utah, Virginia and Wyoming.”
If the reAvard of acquittal is to be forced on a villain Avho can hide from his victim all evidence that he committed a rape, except her own testimony, it should emanate from the legislature, and not from the court.
In the present case, hoAvever, the corroboration is ample.