dissenting.
The prosecution in this case wherein defendant, ail unmarried man 69 years of age, was convicted of assault with intent to commit rape upon prosecutrix, a female child-13: *529years of age, is not triable de novo in the proceeding in error to review the conviction.
There was direct and positive evidence of defendant’s guilt. The jurors composed the tribunal appointed by law to determine whether the witnesses for the state told the truth. The credibility of the witnesses was a question for the jury. They found that the witnesses for the state told the truth and they disbelieved the witnesses who testified to a different story. The trial court sustained the verdict. The jury and the trial court heard the witnesses and observed them as they testified. They had better opportunities than the reviewing court for determining credibility. If the signatures of falsehoods were written in the countenances of witnesses who testified for defendant, the appellate court is not thus enlightened by the record. The circumstances do not convince me that the state failed to prove the guilt of defendant beyond a reasonable doubt. In my opinion the province of the jury is invaded by the decision which gives credence to the testimony of witnesses for defendant and rejects as false evidence of guilt.
My understanding of the law is that, in absence of legislation, the adoption of the rule that corroboration of prosecutrix is necessary to a conviction for assault with intent to commit rape is a usurpation of power exercised only in Nebraska and New Mexico. The power to review criminal prosecutions and convictions comes from three sources — Constitution, legislation and common law. In no one of these is a Nebraska court empowered to make corroboration of prosecutrix necessary to a conviction for assault with intent to commit rape. On this subject I adhere to my dissent in Gammel v. State, 101 Neb. 532, 540, 163 N. W. 854. If corroboration could lawfully be required, however, it is abundant -in the record as I view it.