¶1It is clear, a violation of 17-A M.R. S.A. § 255(1)(C) (unlawful sexual contact) has been established only when it is proven beyond a reasonable doubt that the sexual contact was “for the purpose of arousing or gratifying sexual desire” 17-A M.R.S.A. § 251(1)(D). To instruct that an intentional sexual contact with an “immoral or evil intent” is sufficient is not to describe the law accurately.
¶2The real question before us becomes: is appellant entitled to a new trial because the presiding Justice instructed the jury in part that the crime was complete, the other elements being present, if the sexual contact was made “with an immoral or evil intent” in the circumstances presented in this case?
¶3The issue is before us because the appellant was convicted at a jury trial of two counts of unlawful sexual contact, 17-A M.R.S.A. § 255(1)(C). He has appealed from the judgment entered on the verdict.
¶4Although we recognize that the instruction given the jury that
if you believe that a sexual contact was in fact made, that it was an intentional one, deliberately made by this defendant with an immoral or evil intent, . it is the burden of the State to establish with evidence beyond a reasonable doubt
¶5was error, we conclude it was not error requiring setting aside the judgment and ordering a new trial.
¶6We deny the appeal.
¶7The appellant raises two points on appeal.
¶8As one point he urges that the prosecu-trix was incompetent to testify and it was error to permit her to do so.
¶9The second point is that reversible error is claimed in the instruction to the jury to which we alluded above.
¶10As to the first claim, suffice it to say, that the question of the competency of a child to testify is largely addressed to the discretion of the presiding Justice. The decision of the Court that the child was competent to testify cannot properly be labeled an “arbitrary decision.” From the record in this case we find no abuse of judicial discretion.
¶11The first point is without merit, cf. State v. Brewer, Me., 325 A.2d 26 (1974); State v. Hodgkins, Me., 238 A.2d 41 (1968); State v. Ranger, 149 Me. 52, 98 A.2d 652 (1953).
¶12The claim of error in the presiding Justice’s instruction to the jury was clearly saved. Counsel called the Court’s attention to the Court’s error and registered objection thereto at a time when the Court could have easily corrected the error. This it refused to do.
¶13At this point our thoughts must turn to a consideration of Rule 52(a), M.R.Crim.P. Does the fact that there was error on the part of the presiding Justice, clearly saved by timely objection, require reversal of the judgment which resulted from the trial, without consideration of other factors?
¶14*261We conclude it does not.
¶15As we see it, such is the clear mandate of Rule 52(a) M.R.Crim.P.
¶16Our Rule 52 was borrowed directly from Federal Rule 52, the historical background of which becomes pertinent to a clear understanding of the rationale behind our decision in this case.
¶17Time was when appellate courts, in criminal cases especially, were considered by many to be “impregnable citadels of technicality.”
¶18Associate Justice Rutledge has well described the purpose of Section 269 of the former Federal Judicial Code, (the predecessor to Rule 52(a)) in these terms:
The salutary policy embodied in § 269 was adopted by the Congress in 1919, Act of February 26, 1919, c. 48, 40 Stat. 1181, after long agitation under distinguished professional sponsorship, and after thorough consideration of various proposals designed to enact the policy in successive Congresses from the Sixtieth to the Sixty-fifth. It is not necessary to review in detail the history of the abuses which led to the agitation or of the progress of the legislation through the various sessions to final enactment without debate. 56 Cong.Rec. 11586; 57 Cong.Rec. 3605. But anyone familiar with it knows that § 269 and similar state legislation grew out of widespread and deep conviction over the general course of appellate review in American criminal causes. This was shortly, as one trial judge put it after § 269 had become law, that courts of review, “tower above the trials of criminal cases as impregnable citadels of technicality.” So great was the threat of reversal, in many jurisdictions, that criminal trial became a game for sowing reversible error in the record, only to have repeated the same matching of wits when a new trial had been thus obtained.
In the broad attack on this system great legal names were mobilized, among them Taft, Wigmore, Pound and Hadley, to mention only four. The general object was simple, to substitute judgment for automatic application of rules; to preserve review as a check upon arbitrary action and essential unfairness in trials, but at the same time to make the process perform that function without giving men fairly convicted the multiplicity of loopholes which any highly rigid and minutely detailed scheme of errors especially in relation to procedure, will engender and reflect in a printed record. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). (Citations omitted).
¶19In reviewing the history which prompted the promulgation of Rule 52, these rule of thumb conclusions appear:
(a) If the initial action of the trial court is correct, Rule 52 has no application.
(b) If the initial action was incorrect, the rule recognizes three classes of errors although only two are mentioned by name in the Rule.
(c) An error that has not prejudiced the defendant is deemed harmless and therefore not reversible even though timely objection was made.
(1) If the error may have been prejudicial and objection was made, it is “reversible error.”
(d) Finally, Rule 52(b) contemplates a class of “plain error”; error so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time.
¶20The harmless error rule has not been without its critics. Foremost among these critics was the late Judge Jerome Frank of the Second Circuit Court of Appeals. His dissenting opinion in United States v. Antonelli Fireworks Co., 2d Cir., 155 F.2d 631 (1946), cert. denied 329 U.S. 742, 67 S.Ct. 49, 91 L.Ed. 640 (1946), is quite generally regarded as the clearest and most forceful attack ever mounted on the “harmless error" rule.
¶21Nevertheless, this Court has long since embraced this “harmless error” rule by its adoption of Rule 52(a) M.R.Crim.P., and in a substantial body of case law. As this Court pointed out in State v. Heald, *262Me., 307 A.2d 188, 194 (1973), it is not every trial error which should result in a reversal. A reversal is compelled only if the error affects “substantial rights.” See also, State v. McKeough, Me., 300 A.2d 755 (1973), and cases there cited.
¶22We must then view the error made by the trial Justice in his instructions to the jury as to an essential element of the crime, in the light of the “harmless error rule.”
¶23The burden here was clearly upon the State to produce evidence convincing in its effect beyond a reasonable doubt that the sexual contact was “for the purpose of arousing or gratifying sexual desire.”
¶24The appellant chose to testify.
¶25His contention was that no such incidents as those described by the prosecutrix ever occurred. Under the circumstances the issue of the purpose of the sexual contact, if any there was, was never contested by the defendant in his testimony. This is necessarily so because the appellant denied there was any sexual contact for any purpose. The contest occupied wholly different ground. Morever, our examination of the entirety of the evidence in this case convinces us that no rational fact-finder could conclude that there was any “evil or immoral” purpose other than to satisfy sexual desire. It is for that reason we determine the error to be “harmless” beyond a reasonable doubt. We consider Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), therefore, applicable and controlling. It governs as to constitutional error even if it is such as involves a failure to charge correctly on an essential element of a crime. Cf. State v. McKeough, supra.
¶26We are aware of United States v. Howard, 506 F.2d 1131 (2d Cir. 1974). In that case, unlike the case now before us, there was a failure by the presiding Justice to give any instruction concerning an essential constituent element of the crime. The jury was operating entirely in the dark as what offense the defendant was alleged to have committed. As Howarditself acknowledges, however, this must be distinguished from the situation in which a jury does know “precisely what the elements of the crimes charged are . . . and deliberating upon that knowledge, . . . .” (emphasis supplied). 506 F.2d 1131 at 1134.
¶27Here, there was an instruction concerning all the essential elements of the crime even though as to one element the instruction was erroneous. We are not in disagreement with United States v. Natale, 526 F.2d 1160 (2d Cir. 1975), cert. den. 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed.2d 193 (1976), where it is said “failure to charge each separate element of an offense may be plain error.” (emphasis supplied). Nor are we in disagreement with the statement in United States v. Singleton, 532 F.2d 199 (2d Cir. 1976) where it is written
Generally, this Court has held that the failure to charge accurately each and every element of the offense may be plain error cognizable on appeal without an objection or request for charge having been made below. United States v. Na*263tale. 526 F.2d 1160 (2 Cir. 1975); United States v. Howard. 506 F.2d 1131 (2 Cir. 1974); United States v. Fields. 466 F.2d 119 (2 Cir. 1972). Those cases, however, do not establish a per se rule that every charge which Tails separately and specifically to state each element will irreparably confuse the jury and deny the defendant his “substantial rights” to a fair trial and to have the jury pass upon each issue.
¶28We consider the case before us on its facts more similar to the factual context of Verdugo v. United States, 402 F.2d 599 (9 Cir. 1968), where there was an instruction as to the meaning of the word “possession” used in the applicable statute. The Court declared the instruction was absolutely erroneous, yet found the error was harmless.
¶29While we can seldom say, with moral certainty, that an error is not prejudicial, we are required, in the language of Justice Rutledge
to substitute judgment for automatic application of rules; to preserve review as a check upon arbitrary action and essential unfairness in trials, but at the same time to make the process perform that function without giving men fairly convicted the multiplicity of loopholes which any highly rigid and minutely detailed scheme of errors, especially in relation to procedure, will engender and reflect in a printed record.
¶30We now do that.
¶31Our judgment is that the error in this case was harmless.
¶32The entry must be:
¶33Appeal denied.
¶34Judgment of conviction affirmed.
¶35. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) makes clear the due process clause of the Federal Constitution requires the government to establish beyond a reasonable doubt every fact necessary to constitute the crime with which defendant is charged. Our State Constitution (Me.Const. art. I. § 6) is of identical meaning and is of equivalent import. State v. Demerritt, 149 Me. 380, 386, 103 A.2d 106, 109 (1953).
¶36In view of our conclusion that the evidence established that the purpose of the touching, if any there was, was to arouse or gratify sexual desire, no further discussion of Winship, supra is indicated. No attack on the sufficiency of the evidence has been mounted. Our only concern is whether the erroneous instruction constitutes "reversible error."
¶37. In thus applying the harmless error rule of Chapman v. California, suprato this case, we cannot be fairly charged with becoming fact-finders or depriving defendant of trial by jury unless Chapman v. California, supra,is wrongly decided.
¶38. The writer of this opinion views the facts in this case clearly distinguishable from those facts which prompted him to write a dissenting opinion in State v. Lewisohn, Me., 379 A.2d 1192, 1213 (1977).