(dissenting).
I am not able to agree with the majority opinion so far as it holds that it was error to receive evidence that prosecutrix told the sheriff that she had been raped.
The prosecuting witness had previously testified that she told others that she had been raped. On her cross-examination there. *532was an attempt made to discredit her statements on this subject. The testimony elicited from the sheriff was to corroborate that given by prosecutrix relative to the fact that she made complaint soon after the rape was committed, and all the courts hold that such evidence is admissible.
The rule is stated in 44 Am. Jur., Rape, sec. 82, p. 952, as follows: “In criminal trials for rape and assault with intent to ravish, the courts are unanimous in holding that it may be shown by the testimony of the prosecuting witness, or that of other witnesses, that the prosecutrix made complaint of the outrage soon after its commission, for the purpose of corroborating the testimony of the prosecutrix, but not as independent evidence of the offense charged, unless made in extremis.” And see to the same effect the note in 140 A. L. R. 174; People v. Nobles, 44 Cal. App. (2d) 422, 112 Pac. (2d) 651; Sweazey v. Valley Transport, 6 Wash. (2d) 324, 107 Pac. (2d) 567, 111 Pac. (2d) 1010, 140 A. L. R. 1; State v. Murley, 35 Wash. (2d) 233, 212 Pac. (2d) 801; Affronti v. United States, 8 Cir., 145 F. (2d) 3.
It is going far afield to say, as stated in the majority opinion, that such evidence had the same effect upon the jury as if the sheriff had been present and had seen the act of rape committed upon the prosecutrix. This statement is an unwarranted reflection upon the intelligence of the jury.
Neither do I agree that it was error to refuse to give that part of defendant’s offered instruction No. 0 reading: “You are instructed that you have no right to disregard the testimony of the defendant solely on the ground that he is the defendant and stands charged with the commission of a crime. ’ ’
In the first place defendant has not assigned this as error. He makes no contention in his brief that error was committed in refusing this instruction. But the point is not well taken on its merits. More than 50 years ago this court passed upon this identical question and reached a conclusion contrary to that now proclaimed by the majority opinion. In State v. McClellan, 23 Mont. 532, 59 Pac. 924, 926, 75 Am. St. Rep. 558, this court said: “The court refused to charge that the jury had no right to *533disregard the testimony of the defendants merely because they were the defendants, and stood charged with the commission of a crime; and, furthermore, that the defendants’ testimony should be fairly and impartially considered, together with all the other evidence in the case. There was no error in the refusal of the court to give this instruction, for the court charged that the defendant in a criminal action may testify in his own behalf, and that the jury, in judging of his credibility and the weight to be given his testimony, should take into consideration the fact that he is the defendant, and the nature and enormity of the crime of which he is accused. There was also a general charge that a witness is presumed to speak the truth, but that this presumption might be repelled by the manner in which he testifies, by the character of his testimony, or by evidence affecting his character for truth, honesty, or integrity, or his motives, or by contradictory evidence, and that the jury were the exclusive judges of his credibility. We hold that this was sufficient, and that there was no error in refusing the instruction requested.”
Here, as in the McClellan case, the court instructed the jury that a defendant may testify in his own behalf and that the jury in judging of his credibility and the weight to be given to his testimony may take into consideration the fact that he is the defendant and the nature and enormity of the crime of which he is accused. There was also the stock instruction that a witness is presumed to speak the truth but that this presumption might be repelled by the manner in which he testifies, by the character of his testimony or by evidence affecting his character for truth, honesty or integrity or his motives or by contradictory evidence and that the jury were the exclusive judges of his credibility.
This case is an exact parallel to the McClellan case, and if we are now to change the rule that case should be expressly overruled. I think the McClellan case is proper and that no error was committed in refusing to give offered instruction No. 0.
I do not find in the record any objection to the question asked of Mrs. Chavez as to whether defendant made any statement to her that would indicate that he intended to get what he came *534after. The record shows that after the question was answered-an objection was made. No motion was made to have the answer stricken, but the witness was later asked, “Would you relate to the. jury what the defendant said?” The answer which came without objection was this: “When he got me down, he said that he was going to get what he was after — he said that he was going to get what he was after if it took him all day tc do it. ’ ’ The latter question was not leading nor was there any objection made to the question. I think we should not place the trial court in error when no adverse ruling was made.
These seem to be the only points upon which the majority opinion bases its grounds for reversal. It is true that the majority opinion also makes a studied attempt to discredit some of the testimony of the prosecutrix. But I do not understand that it holds evidence is insufficient to sustain the verdict, verdict.
Our province on the appeal so far as the sufficiency of the evidence is concerned is to ascertain whether there is credible evidence sufficient to sustain the verdict. It is of no consequence to us that the evidence may be conflicting or that some of it may not appear trustworthy. I have no difficulty in finding in the record substantial credible evidence upholding the jury’s verdict. The problem of weighing the evidence when conflicting was one for the jury and not for this court. I think the judgment should be affirmed.