(dissenting).
Although the majority disclaim any present intention to lay down rules prescribing the quantity or character of evidence to establish the offense of which appellant was convicted, nevertheless I think the practical effect of their opinion is to do so. Obviously they expect their “counsel” to the judges of the Municipal Court to be followed or else they would not offer it. Moreover, the judgment of the trial court is reversed for what the majority consider insufficient evidence according to standards of proof laid down by them.
I see no need for special rules of evidence for the trial of a misdemeanor, with relatively slight punishment, when long experience has proven such rules to be unnecessary for trial of the gravest felonies. The majority insist that special concepts are necessary to shield the innocent from blackmail and perjury. But how can rules of evidence protect if the severe penalties for those crimes will not avail ? What relevancy is there between an act of blackmail or perjury on the one hand and the trial of an accused for inviting to lewd or immoral acts on the other?
Doubtless this court has power to formulate rules of criminal evidence, but that power should be, and has been, sparingly used. I can see no reason for invoking it in the present circumstances. Why translate into legal precepts simple processes of reasoning naturally involved in the consideration and solution of a purely factual question? During the history of this court, some '58 years, it has not originated a single rule prescribing the quantity or character of evidence to prove a particular crime. In a few instances, as in rape and perjury, it has followed, with some dilution, rules emerging through ancient English law, requiring varying measures of proof.1 But more enlightened principles, of universal application, have made special rules unnecessary even for the gravest crimes2 The burden upon the prosecution to prove guilt beyond a reasonable doubt3 and the privilege of a defendant to testify in his own behalf4 are both of relatively recent origin. Those protecting shields, with the presumption of innocence5 and the right to assist*157anee of counsel,6 buttressed by impartial judgment of conscientious and intelligent judges and jurors, are the real safeguards against a false accuser.
i The majority • declare that in prosecutions like the present emphasis must be accorded evidence of good character. In support of the proposition they refer to the Villaroman case, 1950, 87 U.S.App. D.C. 240, 184 F.2d 261. But that opinion does not suggest that special weight be given to character evidence in any particular type of case. It deals generally with the possible effects of character .evidence, without reference to the nature of the charge. It gives no support to the view that character evidence shall be given special consideration in any case. I think the proposition is unsound. Logically— and legally, the weight of any evidence in any case must depend alone upon its persuasive quality when considered in the light of all the other evidence.
Judged by prevailing standards it cannot be fairly held that in the present case the evidence was insufficient to support the finding of guilt by the trial judge. There was positive testimony of the invitation and corroborative evidence of surrounding circumstances. Whether that evidence would have convinced me of guilt beyond a reasonable doubt I would not presume to say. It did convince the judge charged by law with determining that vital' question. Yet the majority, going beyond what I believe to be the legitimate bounds of appellate review, have assumed to retry the case upon a cold, printed record, and thus have found the evidence insufficient to establish guilt beyond a reasonable doubt. To support this action cases are cited in which they say this court has reversed “for lack of sufficient evidence to convict.” However, an examination of those cases will show that they were reversed because of a failure of substantial evidence to prove an essential element of the charge. Here, however, in the face of substantial proof of all elements, the majority have assumed authority to weigh the evidence and to determine whether it convinces of guilt beyond a reasonable doubt. I cannot reconcile this action with the opinion of this court in Curley v. United States, 1947, 81 U.S.App.D.C. 389, 160 F.2d 229, certiorari denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850, wherein Judge Prettyman, in keeping with established authority, said: “The decision in the case rests squarely upon the rule of law governing the action of the trial judge upon the motion for directed verdict of acquittal and the action of an appellate court upon a verdict of conviction. We agree, as Ctirley contends, that upon the evidence reasonable minds might have had a reasonable doubt. As much might be said in many, if not in most, criminal cases.” 7 81 U.S.App.D.C. at page 397, 160 F.2d 229, 237. Then after pointing out the possibility of a reasonable doubt arising from certain evidence in Curley’s favor, the opinion continues, “But, as we have stated, that possibility is not the criterion which determines the action of the trial judge upon the motion for directed verdict and is not the basis upon which this court must test the validity of the verdict and the judgment. If the evidence reasonably permits a verdict of acquittal or a verdict of guilt, the decision is for the jury to make. In such case, an appellate court cannot disturb the judgment of the jury. If we ourselves doubted Curley’s guilt, that doubt would be legally immaterial, in view of the evidence and the rule of law applicable.” 8 81 U.S.App.D.C. at page 397, 160 F.2d 229, 237. I agree with that statement of the law. I must therefore disagree with the majority opinion in the present case.
. Rape, Ewing v. United States, 1942, 77 U.S.App.D.C. 14, 135 F.2d 633; Kidwell v. United States, 1912, 38 App.D.C. 566; and perjury, Maragon v. United States, 1950, 87 U.S.App.D.C. 349, 187 F. 2d 79, certiorari denied, 1951, 341 U.S. 932, 71 S.Ct. 804, 95 L.Ed. 1361; Cook v. United States, 1903, 26 App.D.C. 427.
. 7 Wigmore, Evidence § 2044 (3d ed. 1940).
. Origin, about 1793, 9 Wigmore, Evidence § 2497 (3d ed. 1940); 10 Am.L.Rev. 642, 656.
. Denied at Common Law. Established in States in 19th Century, beginning with Maine in 1864. In federal courts by statute of 1878, former Title 28 U.S.C. § 632, now 18 U.S.C. § 3481, Fed.R.Crim.P. 26, 18 U.S.C.
. Coffin v. United States, 1895, 156 U.S. 432, 15 S.Ct. 394, 39 L.Ed. 481; Wolf v. United States, 4 Cir., 1916, 238 F. 902; 1 Wharton, Criminal Evidence § 200 (11th ed. 1935).
. U.S.Const. Amend. VI.
. Emphasis added.
. Emphasis added.