¶1Mr. Thomas A. Clingan, Jr., Washington, D. C., (appointed by this court) for appellant.
¶2Mr. Carl S. Rauh, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.
¶3Before Bazelon, Chief Judge, and Wright and Leventhal, Circuit Judges.
¶5Appellant was convicted of carnal knowledge of a girl under sixteen years of age. On brief, he argued that the instructions regarding the elements of the offense were defective, that the instructions on reasonable doubt were confusing and that there was insufficient evidence to corroborate the victim’s testimony. We have considered these contentions and find them without merit.
¶6On oral argument a new issue was raised. Appellant contended for the *573first time that his case had been improperly treated as a capital one1 and that he had been prejudiced thereby. Appellant’s claim that his offense was not a capital one was based on the statutory language2 or, alternatively, on the proposition that capital punishment for statutory rape would constitute cruel and unusual punishment.3 Since oral argument yet another complication has been added. In United States v. Jackson,4 the Supreme Court held unconstitutional the penalty provisions of a statute which permitted only the jury to inflict capital punishment on the ground that these provisions inhibited defendants from exercising their Fifth Amendment right not to plead guilty and their Sixth Amendment right to a jury trial. The penalty provisions of the D.C. rape statute suffer from the same constitutional infirmity.5
¶7We conclude, however, that appellant was not prejudiced by the fact that his ease was treated as a capital one. Appellant’s allegations of prejudice are two. First he argues that he was prejudiced because people opposed to capital punishment were systematically excluded from the jury which found him guilty. But this contention was rejected in Witherspoon v. State of Illinois,6 and Bumper v. State of North Carolina,7 where the Supreme Court held that a jury from which people who opposed the death penalty were excluded could not impose the death sentence, but could determine guilt or innocence.
¶8Appellant’s second claim is that because the jury improperly had the op-* tion to impose the death penalty it. may have compromised the verdict on guilt or innocence. In other words, some jurors who initially believed appellant was innocent may have agreed to find him guilty in return for other jurors’ giving up their demand for the death penalty.
¶9On the facts of this case we find it overwhelmingly improbable that appellant was the victim of such a compromise. The prosecution never requested the death penalty, or even adverted to it. The trial judge gave it only a one-sentence mention in his charge to the jury. And the details of the crime were not such as to make it likely that the jurors seriously considered imposing the death penalty. Moreover, the evidence did not support a conviction for any lesser included offense, against which the jury *574might have been influenced by the judge’s passing mention of the death penalty.8 A statutory rape had been consummated, and the only real issue in the case was whether appellant was the perpetrator. On that question the evidence was compelling.
¶10Since we find no prejudice, the decision below is affirmed.