rape: assault commit1?11410 evidence. Respecting the conversation testified to by Fitch and Smith (the entire substance of which is given in the statement), the court, at the instance of the State, instructed the jury as follows: “2. The jury, in determining the guilt or innocence of the defendant, should look carefully at the testimony of the prosecuting witness, as well as the testimony of all the óther witnesses; and the declarations of the defendant, if any were made, as to his intention of going to Mrs. Caldwell’s for the purpose of having criminal intercourse with her, should be considered by the jury in connection with all the other testimony, in determining the guilt or innocence of the defendant.”
Referring to the same conversation, the defendant asked the court to give the following instruction: “If the defendant used this language in rant, fun, jest or badinage, the jury ought to disregard it as tending to show defendant’s guilt.”
The court refused to give it as asked, but gave it with the following addition after the word “guilt,” to wit: “ but may be considered by the jury as evidence tending to show that the thought of criminal intercourse with the ■prosecuting witness was in the defendant’s mind.”
We think the modification was, under the circum*203stances, calculated injuriously to affect the defendant’s case.
The State had obtained an instruction to the effect that the declarations of the defendant to Fitch and Smith “ as to the intention of going to the house of Mrs. Caldwell, for the purpose of having criminal intercourse with her, should be considered by the jury, in connection with all the other testimony in the case, as determining the guilt or innocence of the defendant.”
The leading thought in this instruction is not objectionable, as the effect of the circumstance referred to is left with the jury. But the use of the words “ criminal intercourse,” is hardly fair toward the defendant, for he did not declare his intention to commit the crime charged, but only an intention to go over and solicit her chastity, which, in the eye of the law, however reprehensible in morals, would alone be no crime at all, at least none partaking of the nature of that for which the defendant was on trial.
But, waiving this consideration, it was entirely proper, in view of the instruction which the court had given for the State on this subject, that the defendant should ask one as to the effect of the circumstance should the jury view it from his stand-point.
Accordingly, he asked the court to charge the jury, that, if he used this language “in rant, fun, jest or badinage, the jury ought to disregard it as a circumstance tending to show the defendant’s guilt.”
The court might properly, perhaps, have refused tó say to the jury, that, even if spoken in jest, they should wholly disregard it; but to say, as it did, that, even, if spoken in jest, it “may be considered by the jury as evidence tending to show that the thought of criminal intercourse with the prosecuting witness was in the defendant’s mind,” was an improper modification.
*204Can it fairly be predicated of a jest, that it tends to show that the thing spoken in jest was no jest at all, but was said in earnest %
If the defendant spoke what he did wholly in jest or fun, is this evidence tending to show that he had in his mind a serious thought of having criminal intercourse with the prosecuting witness ?
Again, the proposition in the instruction as asked, and which was given, is not consistent with the proposition in the modification which was also given, thus making the instruction, as a whole, objectionable, as not embodying a plain and unambiguous statement of a rule or principle of law.
If the conversation in question was deemed of sufficient importance to be specifically mentioned to the jury, it would have been better to have told them in substance to consider when, where, and under what circumstances it occurred, and to give to it such weight as in their judgment it was entitled to, thus leaving its effect wholly to them.
The evidence of the identity of the defendant with the person who committed the assault, was the controverted point in the case.
Take the instruction as modified by the court, and it was in effect saying to the jury, that the declaration of the defendant, though not seriously spoken, though spoken in mere fun or jest, is yet evidence which tends to show that he was the person guilty of the outrage to which the prosecuting witness testified.
If the defendant’s guilt was beyond all fair doubt, if all the testimony which it was within the power of the State to have produced had been given to the jury, and they, upon full consideration, had found him guilty, we might not have deemed it our duty to have reversed the judgment on account of the modification of the instruction.
*205But the charge in question, it is to be recollected, is easy to be made, and hard to be disproved. In saying this we intend no reflections, not the slightest, upon the prosecuting witness.
But it was due to the cause of justice, that the corroborating evidence clearly within the reach of the State should have been produced to the jury. Reference is here made more particularly to the testimony of her son and of her neighbors, to whom she made complaint, and, if such was the fact, showed the bruises on her person.
Considering the whole case, the judicial mind is better satisfied by reversing the judgment, that there may be another and more full investigation, than by affirming it, when, upon the record, although it does not profess to give all of the evidence in detail, but only the substance, and effect of all, we cannot but entertain serious doubts as to the identification of the defendant, and, consequently, as to the propriety of the conviction. We are all agreed, that it is our duty to grant the defendant a new trial, though Mr. Justice Weight places his concurrence in this result rather upon the unsatisfactory nature of the evidence, and the absence of the corroborating testimony, which, it appears, was within the power of the State to have produced, than upon the instructions to the jury.
Reversed.