¶1The defendant was tried and convicted of “rape,” at the June term district court for 1867.
¶2A reversal of the judgment is sought on the ground, among others not necessary to notice, that the court erred in refusing charges asked by the defendant.
¶3The general charge of the court was simply the statutory definition of the ofíense, with instructions as to the punishment, if found guilty.
¶4The defendant’s counsel asked the court to charge, “that if the defendant procured the consent of Ann Washington … by promises,” the jury could not find him guilty. The evidence Was very conflicting with regard to consent on the part of the person on whom the alleged offense was committed. There is also conflicting testimony about her age: some of the witnesses placing it at ten, others at fourteen years.
¶5It is in proof that the girl stated before the examining court, in her examination in chief, that she refused the solicitations of defendant, but upon cross-examination admitted that upon promises of reward submitted to his embraces. Upon trial in the district court, with equal simplicity, she denied having given her consent, and on cross-examination admitted that she had.
¶6It was also in proof, that the girl had admitted several days after the alleged offense that she had consented. Under these circumstances, we think the minds of the jury ought to have been more particularly directed to the gist *450of the offense. The charge asked by the defendant would have done this, and should have been given.
¶7We look in vain for any evidence to sustain the verdict, unless the jury concluded that the person upon whom the alleged offense' was perpetrated was under ten years of age: This they could not have done without a total disregard of the evidence, as none of the witnesses estimated her age “under ten.” Judgment reversed, and new trial awarded.
¶8Reversed and remanded.