¶1(dissenting).
¶2I am unable to agree with the majority opinion in the disposition of this appeal. At the outset I must say that I am not unmindful of the rule frequently announced by this court to the effect that the weight and credibility of the evidence of witnesses is for the jury, and that the court will not reverse a conviction on conflicting evidence when there is substantial evidence supporting the verdict; and also to the effect that a man may be convicted of indecently handling and touching a female child, on the uncorroborated testimony of the prosecutrix. But the verdict of a jury is not necessarily binding on a court of review when it clearly appears from the whole record that such verdict is wrong. The power of a court of review ought not to be left paralyzed so as to prevent a miscarriage of justice, merely by the erroneous verdict of a jury. See Thuringer v. Trafton, 58 Colo. 250, 144 P. 866.
¶3In the present case, there was, as there always is in a criminal prosecution, a legal presumption that the accused was innocent until proven guilty beyond a reasonable doubt. “ ‘Unless there is substantial evidence of facts which exclude every other hypothesis but that of guilt it is the duty of the trial judge to instruct the jury to return a verdict for the accused, and where all the substantial evidence is as consistent with innocence as with guilt it is the duty of the appellate court to reverse the judgment against him.’ ” Isbell v. United States, 8 Cir., 227 F. 788, 792.
¶4The directly incriminating evidence given by the prosecutrix is that on the evening of June 16, 1954, she accompanied the defendant and two very small children to his ranch, and that while in his ranch house the defendant placed her on the bed, pulled out her leg from her peddle pushers and inserted his fingers as well as his penis into her private parts which hurt her quite a bit. This occurrence was flatly denied by appellant.
¶5To corroborate this narration, the prosecutrix was allowed to testify that the following evening while attending a moving picture show at Springer, New Mexico, she went into the rest room and there discovered a spot of blood on her panties. Likewise, the district attorney was permitted to introduce the panties in evidence.
¶6However, it must be pointed out that the panties which had the blood spot on them and which were introduced in evidence by the district attorney were the ones which the prosecutrix put on just before making a trip to Springer in an automobile accompanied by her sister, aged thirteen, her brother aged sixteen and two sixteen year old boys, and not the panties which prosecutrix had on the evening of the alleged occurrence, which she wore continuously for twenty two hours after said incident, and which had no blood on them.
¶7Doctor J. S. Gunter, whose qualifications were admitted by the district attorney, examined prosecutrix the following evening at the request of her brother, and testified as follows:
“ … Q. What did your examination itself consist of? A.. The examination itself consisted of a rather careful examination of her private parts, and a general examination of her entire body so far as the skin surface was concerned.
“Q. Doctor, as a result of that examination did you find any swelling? A. No.
“Mr. Kearns : At this point the State objects to the testimony and moves that the answers to the last two ques • tions be stricken on the ground that under the charge as made against the defendant it is immaterial whether any physical damage was done to the person of … ?
“The Court: Well, I have an answer to that, but if you insist on the objection I will have to excuse the jury so that I might state my reasons. Do you press your objection? Then I , will have to excuse the jury.
“Mr. Kearns: No, we won’t insist.”
¶8. I assume that the trial judge, in view of the prosecutrix’ testimony that the defendant had inserted his fingers and penis into her private parts, would have ruled the testimony admissible, as touching upon her credibility.
¶9On resuming his testimony, the doctor further testified:
“Q. Now, the last question I asked you doctor was, as a result of your examination did you find any evidence of bruises? A. I did not.
“Q. Doctor, as a result of that examination did you find any tears? A. I did not.
“Q. Doctor, as a result of that examination did you find any evidence of any lacerations? A. I did not.”
¶10We are not here confronted with the crime of rape, but with indecent handling and touching of a female which constitutes the crime, and which involves the same principles of law, to the effect that a man may be convicted on the uncorroborated testimony of the prosecutrix.
¶11We -sustained the' conviction of a man on the uncorroborated testimony of a nine year old girl, in State v. Ellison, 19 N.M. 428, 144 P. 10. But there the unequivocal facts pointed unerringly to the guilt of the defendant. There the outraged child, immediately after being released from appellant’s embrace, and as soon as she could effect her .escape, ran from the room where she had been, and ran across the hallway to her own room which was occupied by herself and twin sister. She immediately locked the door. The prosecutrix then divulged some of the details of the crime, in response' to question as to why she had locked the door, to her twin sister, and a little playmate and a lady who was chambermaid in the hotel. This information was divulged within ten minutes from the time the act occurred. A physician examined the child that day and he testified:
“Q. State to the jury, Doctor, what ■ you found upon that examination ? A. ' Well, the parts were redder than normal, extremely sensitive and a slight tear at the union of the labia of either side as they unite below.
;ji s{c * Jfc .
“Q. Well, what else did you find, Doctor? A. Well, that was practically all, there was some blood, a very slight amount of blood at that time.
… *
“Q. State whether she complained of any pain when you first went to examine her? A. Yes, sir, she was quite tender."
¶12In the instant case the prosecutrix did not, immediately upon reaching her home, divulge to any member of her family what she claims occurred to her just two hours before, and did not do so until approximately twenty four hours after the alleged occurrence, and then only when she discovered a spot of blood on a pair of panties she did not wear that evening, although she was alone with her mother all of the next day. Further in the case at bar there were no inflammation, bruises, lacerations or tears of her private parts, nor were there any tender or sensitive spots thereon which would be the direct result of the alleged acts committed against her.
¶13In the case of State v. Taylor, 32 N.M. 163, 252 P. 984, the following language is found in syllabus No. 2:
“A conviction of statutory rape based on a prosecutrix’s inherently improbable story, uncorroborated by any unequivocal fact pointing unerringly to guilt, will be set aside, in the interest of justice, though the insufficiency of the evidence was not urged in the trial court.”
¶14And in the case of State v. Goodale, 210 Mo. 275, 109 S.W. 9, 11, the Supreme Court of Missouri said:
'“The all-important question on this appeal is whether the testimony in this case is sufficient to sustain the ■ con-. viction of the defendant. The ad- ■ monition of Lord Hale that 'it must be-remembered that this is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocant,’ must be heeded. While it is the law of this state, as in most others, where not modified by statute, that a. conviction for rape may be sustained upon the uncorroborated evidence of the outraged female, it is nevertheless equally well settled that the appellate court will closely scrutinize the testimony upon which the conviction was obtained, and, if it appears incredible and too unsubstantial to make it the basis of a judgment, will reverse the judgment. While, on the one hand, it will not do to hold that because the evidence indicates a depravity not ordi- < narily witnessed among men, it must ‘ be rejected, because the annals of crime ■ are replete with examples wherein the most sacred relations have been disregarded, and the testimony left no room for a reasonable doubt of the guilt of the accused, yet, on the other, many well-authenticated decisions attest that this charge has often been the result of malice and hidden motives, and the. courts have refused to permit convic- , tions to stand because of the utter improbability of the testimony, in the light of the conceded circumstances.”
¶15And in the case of Morris v. State, 9 Okl.Cr. 241, 131 P. 731, 735, it was said:
“The law is that the life or liberty of a citizen shall be taken only in case the right to do so is established beyond all reasonable doubt; and while there is no rule of law which forbids a jury to convict of rape on the uncorroborated testimony of the prosecutrix, provided they are satisfied beyond a reasonable doubt of the truth of her testimony, yet the courts have always recognized the danger of conviction on her uncorroborated testimony, and the testimony of the prosecutrix, if inherently improbable and uncorroborated, will not justify or support a conviction; as the only reasonable conclusion in such cases is that such verdicts are the result of passion or prejudice, and therefore contrary to law.”
¶16I do not want to be understood as holding that a man cannot be convicted of indecently handling or touching a female child upon the uncorroborated testimony of the prosecutrix, but I do conclude that the testimony of the prosecutrix should be clear and convincing and that the unequivocal facts point unerringly to the guilt of the defendant which would leave no room for conjecture.
¶17From a careful reading of the entire record and the evidence given by the prosecutrix, I am of opinion that it is not only unreasonable but highly improbable for the defendant to have committed the atrocious acts against her person, as testified to by her, without having caused some injury to her private parts and thereby leaving physical signs of such atrocity on them.
¶18The defendant’s denial that he ever touched the child, coupled with the doctor’s testimony, who carefully .examined her private parts the following evening, that he found absolutely no signs of any tampering with them, would go to the probative force of a lack of any physical signs of such occurrence.
¶19It is highly significant that the State did not see fit to introduce in evidence the panties prosecutrix wore on the evening of the alleged occurrence and which she wore continuously for approximately twenty-two hours after the acts complained of took place, but did see fit to introduce in evidence the panties which the child wore on a trip in a car with teenagers, and on which she discovered a spot of blood; nor did the state see fit to call the doctor as a witness. As the record stands justice demands a reversal of the judgment.
¶20I am seriously inclined to believe that the verdict was more the result of prejudice and sentiment than the calm and dispassionate conclusion of the jury upon the facts in evidence.
¶21It is my candid opinion that the trial court erred in overruling the defendant’s motion for a directed verdict interposed at the conclusion of the state’s case and renewed at the close of the entire case. The judgment should he reversed with directions to the district court to set aside its judgment and to enter judgment discharging the defendant. The majority having concluded otherwise, I dissent.