(dissenting).
Appellant was indicted in October 1945 for an alleged rape in November 1944. He was not arrested until June 1953. The long delay is not explained. His trial took place nine years after the alleged offense. For reasons I will discuss, I think that the trial court committed plain error in failing to direct an acquittal.1
In a majority of American jurisdictions, as in England,2 no evidence corroborating the prosecutrix’ story is required for conviction, save where her story is inherently incredible or is rendered improbable by other evidence.3 In other jurisdictions, however, including the District of Columbia, no person can be convicted on the prosecutrix’ testimony alone.4 The District’s rule developed from our decision in Kidwell v. United States. We said:
“ * * * We are aware that a conviction for this offense will be sustained upon the testimony of the injured party alone. But where the courts have so held, the circumstances surrounding the parties at the time were such as to point to the probable guilt of the accused, or, at least, corroborate indirectly the testimony of the prosecutrix.” 5
In the later case of Ewing v. United States, we held unequivocally that there “must be circumstances in proof which tend to support the prosecutrix’ story * * noting that it was for lack of such corroborating evidence that “Kid-well’s conviction for one offense was re*620versed”; 6 and we held that circumstantial, as well as direct, evidence would satisfy the corroboration requirement.7
In a majority of the American jurisdictions which follow the corroboration rule, corroboration is required on both the matter of the corpus delicti (penetration by force) and the matter of the identity of the accused.8 Decisions of this court demonstrate — and my brethren do not say otherwise — that the rule has been so applied in this jurisdiction.9 Those decisions also demonstrate the insufficiency of the corroboration in the instant case on both matters. The record, with but one exception, discloses none of the corroborative circumstances present on both matters in the Ewing case, supra, in the later case of McGuinn v. United States,10 and in other cases sustaining rape convictions.
The corpus delicti. The prosecutrix testified that she made her complaint to the first police officer she saw. That officer did not testify, despite the obvious importance of his testimony, concerning her physical and nervous condition. She testified that he took her to the precinct station where she repeated her complaint to Detective Sergeant Howe. Howe did testify. Concerning her physical appearance he said only that there were “several mud stains” and “a number of twigs” on the back of her coat. He was not asked about her nervous condition. The prosecutrix testified that a policewoman took her to the Women’s Bureau and later to a hospital “where they examined me and painted my legs and things where the bruises were.” The policewoman, who testified, could not recall the prosecutrix or the circumstances under which the prosecutrix gave her a statement on the night in question. No medical testimony or hospital records were produced in connection with the alleged hospital examination, despite the glaringly apparent need for such corroboration. The Government made no attempt to explain the absence of evidence on any of these matters.11
*621Except for the fairly prompt complaint, none of the ostensibly corroborating testimony tended to establish any more than that something had occurred at the time and place in question; but that it was rape, i. e., penetration by force, depended entirely upon the complainant’s own testimony. This was not so in the Ewing and McGuinn cases. In Ewing there was not only a prompt complaint but medical evidence that the prosecutrix had recently had intercourse for the first time and testimony by several witnesses that she appeared nervous and distraught on the following day; while in McGuinn, in addition to the prompt •complaint, there was testimony that the complainant was “in a nervous and crying condition” and an admission of intercourse by the accused.
Identity of the accused. The answer to a leading question on direct examination of the prosecutrix provided the only testimony in the entire record linking appellant to the charged offense:
“Q. Calling your attention specifically to the 28th day of November, 1944, and to the time of about 8:00 o’clock, 8:15, 8:30 of that day, I will ask you whether on that day and at that time you saw the defendant here present, Henry Walker? A. Yes, I did.”'
The prosecutrix admitted on cross-examination that she had never seen appellant before the night of the alleged crime and did not know his name at that time; and nothing in the record indicates she ever saw him again until the moment of trial, or that she had ever identified him in a police line-up, from pictures, or by any distinguishing physical features.
No other testimony or circumstance linked the appellant to the crime. The majority asserts that the prosecutrix’ identification is corroborated by the fact that she rode on lighted streetcars with her assailant for thirty minutes and so had a good opportunity to observe him. But testimony of the prosecutrix herself does not meet the requirement that her testimony be corroborated. There is not one iota of corroboration that such a streetcar ride took place. It is urged further that appellant’s silence when asked certain incriminating questions provided corroboration on the issue of identity. Without deciding whether the mere silence of an obviously confused and ignorant defendant can ever be corroborative evidence, we note that on cross-examination appellant stated categorically that he had never seen the complainant before she got on the stand at the trial.
I have found no case in which this court has affirmed a rape conviction in the absence of substantial corroboration of identity. In Ewing there was testimony that the accused was known to the complainant, and that he lived in the same apartment and “spent the night [of the alleged attack] either in the living room or in a room across the hall * * ” from the complainant. In McGuinn [89 U.S.App.D.C. 197, 191 F.2d 478] we noted that the accused was “found as described by the complaining witness in the front seat with his pants and shorts down.” There has been comparable corroborative evidence of identity in other cases. For example, in Robinson v. United States: “In addition to the complaining witness’ positive identification, there was much substantiating evidence both of identification and of the crime. Some of it was circumstantial. Some of it was in the form of testimony concerning damaging admissions previously made by defendant.” 12 In Brown v. United States, where “the only question was one of identification,” a companion of the victim at the time of the assault identified the accused at the trial. We held the case was properly submitted to the jury since “there was positive testimony identifying [the accused] as the assailant.”13
*622The court, citing Curley v. United States,14 says, “We cannot say that the jury could not fairly conclude guilt beyond a reasonable doubt.” But even if the evidence would have been sufficient under the Curley rule, in a case not involving rape, the plain meaning of our corroboration rule in rape cases is that there must be an acquittal as a matter of law where, as here, the prosecution fails to produce the required direct or circumstantial corroborative evidence.
. Ordinarily, review of this issue is barred where, as here, the motion for acquittal was not renewed after the close of all the evidence. This principle, however, does “not restrain us from rectifying manifest error or serious injustice.” Battle v. United States, 1953, 92 U.S.App.D.C. 220, 221, 206 F.2d 440, 441, and authorities cited, note 3. I think such matters are disclosed by this record.
. 7 Wigmore § 2061 (3d ed. 1940).
. See cases collected 7 Wigmore § 2061, n. 1, and 60 A.L.R. 1124 et seq.
. Those jurisdictions are: Idaho (case law) ; Illinois (ease law); Iowa (statute); Nebraska (case law); New York (statute).
The rule stems from Lord Hale’s famous dictum (I Pleas of the Crown 633, 635 (1680)):
“It is true, rape is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it must be remembered that it is an accusation easily to be made and hard to be proved; and harder to be defended by the party accused, though never so innocent.”
. 1912, 38 App.D.C. 566, 573.
. 1942, 77 U.S.App.D.C. 14, 17, 135 F.2d 633, 636, certiorari denied, 1943, 318 U.S. 776, 63 S.Ct. 829, 87 L.Ed. 1145.
. Ibid. That circumstantial corroborative evidence satisfied tbe rule was reaffirmed in McGuinn v. United States, 1951, 89 U.S.App.D.C. 197, 191 F.2d 477.
. Iowa. Iowa Code § 13900, I.C.A. § 782.4, provides that one “ * * * cannot be convicted upon the testimony of the person injured, unless she be corroborated by other evidence tending to connect the defendant with the commission of the offense.’’ See State v. Lahmon, 1942, 231 Iowa 448, 1 N.W.2d 629, 630. New York. People v. Terwilliger, 1893, 74 Hun. 310, 26 N.Y.S. 674, affirmed on opinion below, 1894, 142 N.Y. 629, 37 N.E. 565. See also People v. Croes, 1941, 285 N.Y. 279, 34 N.E.2d 320; People v. Romano, 1939, 279 N.Y. 392, 18 N.E.2d 634; People v. Brehm, 1926, 218 App.Div. 266, 218 N.Y.S. 469. Illinois. People v. Grudecki, 1940, 373 Ill. 536, 27 N.E.2d 51. Idaho. State v. Mason, 1925, 41 Idaho 506, 239 P. 733; State v. Elsen, 1947, 68 Idaho 50, 187 P.2d 976. Contra: Noonan v. State, 1928, 117 Neb. 520, 221 N.W. 434, 60 A.L.R. 1118.
. In Kelly v. United States, 1952, 90 U.S.App.D.C. 125, 127, 194 F.2d 150, 152, a case involving tbe crime of inviting to commit a perverted sexual act, we stated that in rape cases “the testimony of the prosecutrix must be corroborated by evidence as to the circumstances surrounding the parties at the time.” (Emphasis supplied.) While declining to impose “rigid requirements as to quantity or character of proof * * * ” in that type of ease, we counseled trial courts, inter alia, to “require corroboration of the circumstances surrounding the parties at the time, such as presence at the alleged time and place * * 90 U.S.App.D.C. at pages 129-130, 194 F.2d at pages 154, 155, emphasis supplied. A fortiori such corroboration is required in rape cases, where we do have “rigid requirements as to quantity or character of proof * * *_»
. 1951, 89 U.S.App.D.C. 197, 191 F.2d 477.
. Regarding the importance of the lack of evidence of nervous and physical condition following an alleged rape, see People v. O’Connor, 1952, 412 Ill. 304, 106 N.E.2d 176; People v. Trobiani, 1952, 412 Ill. 235, 106 N.E.2d 367; People v. Scott, 1950, 407 Ill. 301, 95 N.E.2d 315.
. 1942, 76 U.S.App.D.C. 29, 30, 128 F.2d 322, 323.
. 1938, 69 App.D.C. 96, 97-98, 99 F.2d 131, 132; cf. McKenzie v. United States, 1942, 75 U.S.App.D.C. 270, 126 F.2d 533.
. 81 U.S.App.D.C. 389, 160 F.2d 229, certiorari denied, 1947, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850.