delivered the following dissenting opinion:
Evidence of third parties of the complaint made to them by a prosecutrix in a case of rape is purely hearsay testimony. Its admissibility depends upon an exception to the general rule against this species of testimony; the reason of the exception being that it tends to rebut the possible inference that the prosecutrix *420consented to the act of which complaint is made. Where, however, the prosecutrix is younger than the age of consent, the reason of the rule fails, and with it the admissibility of the testimony perishes. The doctrine is thus expressed by this court in State v. Birchard, 35 Or. 484 (59 Pac. 468), where Mr. Justice Moore uses this language:
“Such a complaint is but the natural expression of a virtuous female who has been wantonly outraged by the use of superior physical force, or intimidation by threats. But where, as in the case at bar, the intercourse is alleged to have been had with a person under the age of consent, the reason for the rule ceases, and it necessarily becomes inoperative.”
In good reason, as well as upon the authority of this precedent, it was error to admit any evidence of the complaint of the prosecutrix in this case, as she" was under the age of consent. Moreover, the rule established in this state is that such testimony must be confined to the bare fact that complaint was made without giving the name of the assailant or other particulars stated by the female in her accusation: State v. Tom, 8 Or. 180; State v. Sargent, 32 Or. 110 (49 Pac. 889). In both respects, therefore, the court committed an error of law in allowing the mother of the prosecutrix to testify that the child complained and designated her father as the one perpetrating the wrong.
The rule respecting errors of this nature is thus tersely stated by Mr. Justice Moore in Carter v. Wakeman, 45 Or. 427, 430 (78 Pac. 362, 363):
“When.it is manifest that an error has been committed, prejudice will be presumed, unless it affirmatively appears, from an inspection of the record, that no prejudice could have resulted therefrom.”
*421See, also, Du Bois v. Perkins, 21 Or. 189 (27 Pac. 1044); Nickum v. Gaston, 24 Or. 380 (33 Pac. 671, 35 Pac. 31); Cleveland Oil Co. v. Norwich Ins. Soc., 34 Or. 228 (55 Pac. 435); Carney v. Duniway, 35 Or. 131 (57 Pac. 192, 58 Pac. 105); Aldrich v. Columbia Ry. Co., 39 Or. 263 (64 Pac. 455); Durkee v. Carr, 38 Or. 189 (63 Pac. 117); State v. Goodager, 56 Or. 198 (106 Pac. 638, 108 Pac. 185).
Someone has very wisely said in substance of the crime in question that it is easy to charge, hard to prove, and still harder to defend against. It is a matter of common knowledge that men who ordinarily compose juries will not think or act dispassionately on a case of this sort. By far too frequently does the mere charge raise the cry of the mob, ‘ ‘ Crucify him! Crucify him! ’ ’ Taking advantage of this,' it is easy for one having ill feeling against the accused to work up a case involving a little girl and arouse the indignation natural in the breast of everyone who has a heart above a beast. The influence of a possibly designing mother over such a child is so great tending to a fabricated story that the legal rights of the defendant ought to be strictly guarded. By so much as the court erred in the admission of the testimony mentioned, it denied the defendant the right of fair trial by jury: State v. Bader, 62 Or. 37 (124 Pac. 195); Sullivan v. Wakefield, 65 Or. 528, 535 (133 Pac. 641); Forrest v. Portland Ry., L. & P. Co., 64 Or. 240 (129 Pac. 1050). We ought not to perpetuate this abuse of his constitutional rights in the face of our own decisions. The conviction should be reversed. I dissent from the conclusion of Mr. Justice Moore.