¶1(specially concurring).
¶2I base my concurrence in reversal entirely upon the fact that the instruction criticized in the majority opinion was given without knowledge of counsel for the defendant until after he had closed his argument. While the court may give the instruction during the argument or at any time before the jury retires, the attention of counsel for the opposing side should be promptly called to the giving of the instruction, and he should be given opportunity to procure a counter instruction and to reshape his argument, if necessary. I do not think the instruction given is erroneous or ambiguous. It might be more explicitly phrased, but if the instruction had been given prior to the argument, or if the attention of counsel had been called to it before he concluded his argument, and he given an opportunity to answer it and to .procure other instructions if he deemed it advisable, I should unhesitatingly vote for the case to be affirmed.
¶3In the case at bar the only element of the crime charged which was disputed by the defendant was with reference to her previous chastity, and the instruction given required the jury to find that this existed beyond a reasonable doubt. The "phrase “as charged in the indictment” necessarily means the elements of crime must be proven that are charged in the indictment. I think the criticism of the instruction is too critical, and I fail to see how any man with common sense could be misled by this instruction, especially when it is considered with all the other instructions in the case, as it-must be.