¶1(concurring specially). This case presents a put-up job to squeeze some loot from a thrifty miser. It is another case of killing the hen that laid the golden egg, and the result is the same.
¶2We have a court drama in four acts. As the story goes, at 3 o’clock one Sunday in July a young lassie, nearing her teens, went into the store of a miser, gave him five cents for candy, went into the back room where she saw some apples, and he went there too, set her standing on an old rickety chair, knelt down and commenced licking her person.. They spoke not a word during the ten minutes she was in the store-There was no kissing or caressing. She was not given even a peanut. She went out and ate her candy, then called on a playmate and told her story in four words, and, when night came, told her mother, a widow who did work for the wife of the miser. In this drama the lassie is the hero, the miser is the villain, the mamma is the widow in the background. The playmate and the mamma say she told the same story to them. The miser swears the story is wholly untrue; that it is a complete fabrication; that in July on Sunday afternoons his store was crowded with customers; that there were no apples in July. Of course.he was found guilty, and his sentence was nine.months and $500. He pays probably a thousand dollars for defense, rather than to pay a. few hundred dollars where it would have done the most good.
¶3In such a case the desire of the jurors to be on the laughing side, and. to show a mock horror of things scandalous and incredible, has led to the conviction and ruin of many an innocent person. There is no-natural desire in man or in any of the lower animals to do any such licking. The conviction was on the mere word of the girl, against the-oath of .the defendant. I say it was on her word, because she was too-*569young to know the nature of an oath or to incur any penalty for false-swearing, and she was probably well enough pleased to be made the hero in a theatrical court performance, with the state’s attorney and the judge in turn leading her, prompting her and putting words in her mouth and addressing her with the greatest familiarity.
¶4On such evidence no jury would have thought of convicting a man-of an ordinary theft, but because the charge was incredible, ridiculous, and scandalous, the defendant was convicted and sentenced to nine months in jail and a fine of $500. The girl confessed that she was-told what to say, and she said it under manifest pressure and reluctance.
¶5The cross-examination of defendant was highly improper, and it merits a severe rebuke. After defendant had been sworn and denied the charge in the most positive and circumstantial manner, the state’s, attorney asked him: Did you not do the same thing with this one and that one and several others? He asked some fourteen accusing questions for the manifest purpose of poisoning the mind of the jury, and by each accusing question the state’s attorney did in effect affirm that it was true. It is high time for this court to make it known that such a procedure will not be tolerated and that it is cause for disbarment. In the conduct of a case, no attorney has a right to make himself a witness by putting accusing or vexatious questions. Under such a procedure a man’s innocence is no protection. The veriest saint may be subject to blackmail by any party or parties who can safely use a little girl as the hero or scapegoat. Indeed, if the accused had been as pure as the angels above, it would have been better for him to have paid $1,000,. than to have taken the chance of such an ordeal and the expense of such a trial.
¶6The prosecution is under this statute: Section 10,250: “Every person who wilfully and wrongfully commits any act which grossly injures the person or property of another, or which grossly disturbs the-public peace or health, or which openly outrages public decency, and is injurious to public morals, ... is guilty of a misdemeanor.”
¶7The complaint is for an act which grossly injures the person of another, and not an act injurious to property or public peace, or public health, or public decency, or anything public. There is no averment or claim that the act in question was public. It is needless to review the manifest errors appearing of record. In a prosecution for an act which *570is grossly injurious to the person of another, the information and the •evidence must state facts showing some material physical injury to the person, and not merely a mental or moral injury, such as may result from vile or abusive language. The statute plainly refers to a wilful .act which, does a great injury to the physical person of another. Neither in the complaint nor in the evidence is there any statement of facts .showing a gross injury or any injury to the physical person of another.
¶8The other judges conclude their decision by a dictum holding that, if there were any offense, it was an attempt to commit sodomy. Truly that is ridiculous. Men do not accomplish rape or sodomy with the "tongue. It has no penetrating force, and, under the statute, there must be “sexual penetration.” The tongue is never an instrument of .force or violence.