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"A reasonable doubt is such a doubt as would | trix, and further instructed that if the jury cause a reasonable and prudent man to pause believed that the prosecutrix told her moth. and hesitate to act in the graver and more important affairs of life, but a reasonable doubt is not merely a possibility of innocence, nor a speculation as to the innocence of the defendant not arising out of the evidence in the case or the want of it."
We see no objection to this instruction. A much less comprehensive one was sustained in Chavez v. Territory, 6 N. M. 455-463, 30 Pac. 903. The instruction is sanctioned on authority in Brickwood's Sackett Ins. § 2647.  15. Objection is made to the twentyfourth instruction, which submitted to the jury, with the instruction, the indictment "for your guidance as to the issues." The exception to this instruction was general and specified no grounds. This objection is not carried forward into the motion for a new trial, and hence presents no question for re
view here. U. S. v. Cook, 15 N. M. 127, 103 Pac. 305; Duncan v. Holder, 15 N. M. 323, 107 Pac. 685; State v. Garcia, decided this
Requested instruction No. 3 is as follows: "If the jury believe from the evidence that at the time of the alleged rape other people were, at the same time, in the same house, who might easily have heard her had she made any outcry, and that she in fact made no outcry at the time it is alleged that the defendant was committing the crime as alleged in the indictment, these facts will tend to raise a presump: tion that no rape was committed upon her at the time."
As to this instruction it may be said that it was properly refused because it is erroneous as a matter of law. Failure to make outcry in a case like this, where there was no excessive force used, and where the girl was of such tender years as not to appreciate fully what was being done to her, does not raise a presumption that the act was not committed. She may have, in fact, consented in so far as she was capable of so doing. The most that can be said of the failure to make outcry in such a case is that it is a circumstance for the consideration of the jury in determining the truth as to whether sexual intercourse was had by the parties. A case cited by counsel (State v. Hagerman, 47 Iowa, 151) has no application. In the first place, it does not decide what it is cited for, and in the second place, in that case, as near as can be ascertained from the opinion, force was used. In such case the court says the better practice is to call the attention of the jury to the fact of outcry, or absence of it.
er or other persons of the assault upon her at the earliest opportunity, this fact would constitute corroboration of her testimony. In requested instruction No. 5, counsel for defendant took the position that likewise the testimony of the prosecutrix must be cor roborated, but that such corroboration must be of such character as, standing alone and without the aid of the testimony of the prosecutrix, tends to connect the defendant with the commission of the crime. In other words, the proposition was advanced that corroboration must come from some other source than the prosecutrix herself, and that consequently her own complaint would not be a corroboration. Counsel cites authority to that effect from the states of Washington, Iowa, and Nebraska. See State v. Stewart,
52 Wash. 61, 100 Pac. 153, 17 Ann. Cas. 411; State v. Simmons, 52 Wash. 132, 100 Pac. 269; Mott v. State, 83 Neb. 226, 119 N. W. 461; State v. Ralston, 139 Iowa, 44, 116 N. W. 1058. The Attorney General has raised in this court no question in regard to the proposition that the testimony of the prosecutrix in cases of this kind requires corroboration. It thus appears that a mistaken view of the law was taken by the court below, and by counsel for appellant and the Attorney General in this court. The testimony of a prosecutrix in cases of this kind requires no corroboration. Corroboration is required in many of the states by statute. But in the absence of a statute a man may be convicted of rape on the uncorroborated testimony of a strumpet, or he may be convicted on the uncorroborated testimony of a girl below 10 years of age. 2 Bishop's New Crim. Proc. § 968; 10 Ency. Ev. 600; 3 Wigmore on Ev. § 2061; 4 Elliott on Ev. 3102; 33 Cyc. § 1495; Trimble v. Ty., 8 Ariz. 273, 71 Pac. 932; Peckham v. People, 32 Colo. 140, 75 Pac. 422; Barnett v. State, 83 Ala. 40, 3 South. 612; State v. Dusenberry, 112 Mo. 277, 20 S. W. 461; State v. Lattin, 29 Conn.
In this connection we have re-examined all of the New Mexico cases. In Territory v. Edie, 6 N. M. 555, 30 Pac. 851, it was held, among other things, that a woman's complaint at the earliest opportunity was a corroborating circumstance, tending to sustain the truth of her statements on the stand. This case, unless to be departed from, for which we see no reason, is authority for the instructions given in the case at bar.
In Territory v. Maldonado, 9 N. M. 629, 58 Pac. 350, the court held that the complaint giving the details of the outrage could not be given in evidence in the first instance.
In Mares v. Territory, 10 N. M. 770, 65  17. In instructions Nos. 11 and 12, Pac. 165, some language is used which might given by the court, he directed the jury that be considered as supporting the doctrine the defendant could not be convicted upon that corroboration is required in all cases.
In that case there was an entire absence
"We are of the opinion that there is not suffi- | monial value as to render it unworthy of cient evidence on the part of the prosecution to belief, and to cause it to fail to meet the rejustify this conviction. There should be some quirements of the law, namely, evidence of corroborating evidence or circumstance, however slight, or a reasonable probability of the a substantial character. In this sense there truth of the assault, to justify a verdict of must, of course, be corroboration. In some guilty. There is not, in the whole case, any of the states, by reason of the terms of the corroborating evidence, nor a single corroborating circumstance, and the probability of the statute, corroboration must come from some commission of the alleged offense is so far out- outside source in the form of testimony of side of the domain of reason that there was an independent character, disconnected from absolutely nothing for the consideration of the the testimony of the prosecutrix. It is not jury except the bare improbable statement of the prosecutrix.' in this sense, in this jurisdiction, that the prosecutrix must be corroborated. It thus court and counsel as to whether the comappears that the controversy between the plaints of the prosecutrix were corroboration becomes immaterial. The instruction of the court gave the defendant more than he was entitled to have in the way of protection, in requiring the testimony of the prosecutrix to be corroborated. If the court erroneously instructed that corroboration might consist in the proof of complaints made by the prosecutrix to her mother and others, the error was harmless, because no corroboration of her was required. The question for the jury was, Did the defendant commit the crime as charged? If they believed the evidence of the prosecutrix, they were authorized to do so, and convict upon it with or without corroboration.
of timely complaint, entire absence of proof of resistance or force, the place was a public place, and the room in full view of the street, and no outcry was made. All of the circumstances not only failed to corroborate the witness, but they all tended to contradict her, and rendered it highly improbable that the offense was committed. We do not inWe do not interpret the case as laying down an absolute rule of law that a prosecutrix must be corroborated in all instances. If she tells the truth, the surrounding circumstances come to her aid and support naturally and automatically. If she lies, manufactures a story, she can seldom, if ever, close all the avenues against detection and consequent overthrow. The bald statement of a woman in this regard must necessarily be connected with some surrounding circumstance which either tend to support or to contradict her. She must have been at the place designated by her. The man must have been there, she must retire from the place, and she must account circumstantially for these circumstances, or her statement ordinarily will receive no credence by reasonable men. She cannot separate herself from these circumstances if she would, and they are, when shown, corroboration of her statements, or a contradiction of the same. This is all that is decided by the court in Mares v. Territory, supra. In that case, the circumstances shown all contradicted the prosecutrix, so that there was such a want of substantial evidence as to require a discharge of the defendant.
In State v. Alva, 134 Pac. 209, it was assumed by this court, but not decided, that corroboration was necessary, but we held in that case simply that the prosecutrix was corroborated.
 18. The remaining assignments are not argued, and will not be discussed. not argued, and will not be discussed. In conclusion we wish to say that, owing to the severity of the punishment fixed by the law for this offense, the inherent improbability of the commission of such an offense upon a little girl by any sane and reasonable man, the danger of mistake in such cases, together with the insistence of counsel in their exhaustive briefs, we have been more than usually careful in the examination of the record. We have determined, as before seen, that no errors of law were committed by the court which are be
committed. This examination of the record has convinced us of the guilt of the defendant of this horrible outrage, and we unhesitatingly affirm the judgment; and it is
It is of course true that in a sense the testimony of a prosecutrix must be corrobo-fore us for examination, if, indeed, any were rated. That is, it must bring together a number of surrounding facts and circumstances which coincide with and tend to establish the truth of her testimony. Without such surrounding facts and circumstances, the bald statement and charge of a woman against a man would be so devoid of testi144 P.-2
ROBERTS, C. J., and HANNA, J., concur.
(22 Wyo. 478)
REYNOLDS v. MORTON. (Supreme Court of Wyoming. Nov. 16, 1914.) 1. APPEAL AND ERROR (§ 773*)-DISMISSAL WAIVER BY STIPULATION.
Defendant in error, who failed to file any motion to dismiss the proceedings in error while plaintiff in error was in default in filing his brief, and who ha stipulated in writing for an extension of the time for filing the brief, could not be permitted to invoke the rule requiring briefs to be filed within a certain time, as his written stipulation was a waiver of the
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3104, 3108-3110; Dec. Dig. § 773.*]
trial, and that the errors assigned are only such as can be assigned as grounds for a new trial in the court below.
[1, 2] The petition in error was filed April 9, 1914. The time for filing brief on behalf of plaintiff in error therefore expired June 8, 1914. No brief was filed within that time; but on July 6, 1914, the attorneys for the respective parties entered into a written stipulation extending the time for plaintiff in error to file and serve his brief until August 15, 1914, and giving defendant in error his full 45 days thereafter to file and serve his brief. That stipulation was filed July 9, 1914. No brief was filed on or before August 2. APPEAL AND ERROR (8 773*)-BRIEFS-JU- 15th. By written stipulation of said attorThe failure to file and serve a brief with-neys, bearing no date, but filed August 18, in the time required by the rules of the Supreme 1914, the time for plaintiff in error to file Court is not jurisdictional, and may be waived. and serve his brief was further extended un[Ed. Note.-For other cases, see Appeal and til August 25, and for defendant in error unError, Cent. Dig. $$ 3104, 3108-3110; Dec. til October 10, 1914. Plaintiff in error filed Dig. 773.*] his brief August 24, 1914, one day before the expiration of the time allowed by the last stipulation. The motion to dismiss was filed September 23, 1914. Had the defendant in error filed his motion to dismiss while plaintiff in error was in default, that is, either between June 8th and July 6th, or between August 15th and August 18th, and had not, by written stipulation, waived such defaults, the motion on the first ground would be properly before the court for consideration. But counsel cannot be permitted to invoke the rule in violation of their written stipulation waiving the default. That the failure to file and serve a brief within the time required by the rule is not jurisdictional and may be waived was held in Union Pacific R. Co. v. Grace, 137 Pac. 881.
3. APPEAL AND ERROR (§ 627*)-DISMISSAL
FAILURE TO FILE TRANSCRIPT.
Neither under rule of court nor under Comp. St. 1910, § 5114, requiring plaintiff in error to file with his petition in error an application for an order requiring the clerk of the district court to transmit to the Supreme Court all the original papers and a duly authenticated transcript of all such entries of record as he may desire, and requiring the clerk of the district court to comply therewith, is the clerk's failure to do so ground for dismissal.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2744-2749, 3126; Dec. Dig. 627.*]
4. APPEAL AND ERROR (§ 554*)-DISMISSAL BILL OF EXCEPTIONS.
The failure to file a bill of exceptions containing a motion for a new trial is not ground for dismissal where, before the hearing thereon, a proper bill of exceptions was filed.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2472-2477; Dec. Dig. § 554.*]
Error to District Court, Niobrara County;
Allen G. Fisher and William P. Rooney, both of Chadron, for plaintiff in error. Norton & Hagens, of Casper, for defendant in
BEARD, J. This case is before the court at this time on the motion of defendant in error to dismiss the proceedings in error for the reasons: (1) That plaintiff in error failed to file his brief within the time required by the rules of this court; (2) that he has failed to cause the original papers in the case to be sent up to this court, properly authenticated as required by the rules; (3) that he failed to have sent up a properly authenticated transcript of the journal entries in said cause; (4) that no bill of exceptions has been filed containing a motion for a new
 The second and third grounds of the motion may be considered together. We find filed on the day the petition in error was among the files in this court an application, filed, for an order on the clerk of the district court requiring him to certify to this court "the following named original papers in said case to wit: Petition, answer, reply, instructions requested and refused, instructions given, motion for new trial, bill of exceptions, and transcript of all journal entries, and also a duly authenticated transcript of the following journal entries and other matters of record in said cause: Order on motion for new trial, order fixing supersedeas, judgment." The order was accordingly issued by the clerk on the same day, and service of the same acknowledged by the clerk of the district court two days later. By section 5114, Comp. Stat. 1910, the plaintiff in error is required to file with his petition in error an application for an order requiring the clerk of the district court to transmit to the Supreme Court all such original papers in the case and a duly authenticated transcript of all such journal entries or other entries of record as he may desire, and as may be nec
essary to exhibit the errors complained of; and it is made the duty of the clerk of the district court to forthwith comply with such order. But his failure to do so is not made a ground for dismissing the proceedings in error either by statute or rule of court. There was filed in this court on April 15, 1914, what purports to be the original papers and journal entries called for by the application and order. Whether they are properly authenticated or are sufficient to exhibit the errors complained of we do not think properly presented by the present motion, and do not therefore determine those matters.
 As to the fourth ground of the motion, there was filed on September 25, 1914, and before the hearing on the motion, what purports to be a bill of exceptions.
Deeming none of the grounds of the motion well taken, it is denied. Defendant in error will be allowed 45 days from this date to file and serve his brief.
Motion to dismiss denied.
failed to establish a right to recover, and we think that appears from a fair reading of the opinion thus criticized. In that opinion, after referring to the previous decision and the ground thereof, we said:
"The court is now of the opinion that the question whether the danger was obvious and was appreciated, or should have been appreciquestion of fact for the jury, and was properly ated, by the plaintiff. was, upon the evidence, a submitted to the jury by the trial court.'
That statement is followed by a discussion of the evidence, showing a conflict therein as to matters to be considered in determining whether the failure to warn the plaintiff was a proximate cause of his injury, and in concluding that discussion it was said:
"The evidence on the question was conflicting, and, as we are now convinced, was properly submitted to the jury."
At another place in the opinion it was said: "Several experienced miners having testified that it would require experience to understand and appreciate the danger of the lump of coal falling under the conditions that existed immediately prior to the time that Benedict was injured, or that there was danger of the lump of coal falling after he and his fellow workman had attempted to pry it down with a tamping bar, and it seemed to be solid and the plaintiff having testified that he believed it to be safe, or he would not have returned there to work, although the evidence as to the degree of experience necessary to understand the danger was conflicting, we are convinced that a proper application of the general rule to the facts required a submission of the case to the jury, and that neither the trial court nor this court would be authorized to determine, as a matter of law, that the danger was obvious, and that therefore the failure of the company to properly warn and instruct the defendant in error was not a proximate cause of the injury. It seems to us impossible to say that reasonable minds could not differ upon the question."
POTTER, J. Another petition for rehearing has been filed in this case, this time by counsel for plaintiff in error. We think it unnecessary to again enter upon a discussion of This was said after calling attention to the rules of law applicable to the facts in the general rule as to directing verdict in this case. Upon due consideration of the this class of actions, and that a court is not points made in the brief in support of the authorized to say, as a matter of law, that present application for rehearing, we remain the danger was obvious, unless it is shown satisfied with the conclusion announced upon by the evidence without conflict that an ora rehearing of the cause in the opinion filed dinarily prudent man or one with the exMay 16, 1914, resulting in an affirmance of perience of the injured servant ought to have the judgment. 140 Pac. 1013. Counsel, how-noticed it, and reviewing some of the cases ever, say in their brief now under consider- in which that rule was applied. ation that they are unable to find in said Counsel quote from the above-quoted statelast decision that the court had receded from ment the words "that therefore the failure the position stated in the opinion rendered of the company to properly warn and inupon the original hearing that there was a struct the defendant in error was not a proxitotal failure of proof on the part of the plain- mate cause of the injury," and say that they tiff below to recover. It was not said in do not understand what is meant thereby. the opinion disposing of the case on the first The meaning is, we think, apparent, viz.: hearing that there was a "total" failure of That neither the trial court nor this court proof. It was said and held, after discussing would be authorized to determine, as a matter the evidence and considering its effect, that of law, that the failure of the company to the plaintiff had failed to that properly warn and instruct was not a proxithe company's negligence, if any, was the mate cause of the injury. No doubt, the proximate cause of his injury; intending thought might have been better expressed. thereby to decide not that there was an en- but that is not a ground for rehearing. tire lack of evidence, but that the evidence was insufficient. It was certainly intended by the later opinion to recede from the position that, as a matter of law, the evidence
The points involved in the case have received the most careful consideration by this court, and we do not see that any useful purpose could be subserved by another rehearing.
The present application will therefore be Rev. St. 1908, § 2123, was not waived by the dedenied.
SCOTT, C. J., concurs.
BEARD, J. (concurring). I concur in denying a further rehearing in this case, for the reason that, in my opinion, it is doubtful if a second rehearing should be granted in any case. In this case a rehearing was granted, and the questions involved were fully and ably presented, and a majority of the court arrived at a conclusion with which, on a reconsideration of the points on the present application, they are still satisfied. Further argument would unduly protract the litigation.
(58 Colo. 154)
HARRINGTON v. HARRINGTON. (No. 7782.)
(Supreme Court of Colorado. Nov. 2, 1914.) 1. DIVORCE (§ 184*)-REVIEW BY WRIT OF ERBOR-TIME FOR SUING OUT WRIT.
fendant in error filing a petition in the Court of Appeals to remand the case to the Supreme Court; the question not being a jurisdictional one waived by a general appearance, but a question of limitation relating to a purely defensive matter and properly raised by a motion to dismiss.
[Ed. Note.-For other cases, see Divorce, Cent. Dig. 88 570-573; Dec. Dig. § 184.*] 5. DIVORCE (§ 184*)-DECREE-ENTRY-RELATING BACK TO RENDITION.
Where, in an action for divorce, judgment was rendered in favor of defendant on his crossthereof was suspended for ten days, nothing complaint, on December 6, 1910, but entry further having been done until May 1, 1911, when the decree was formally entered of record, the judgment became effective at the expiration of the ten days, and the formal entry was purely clerical or ministerial, and, whenever done, related back to the date of the actual rendition of the judgment.
[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 570-573; Dec. Dig. § 184.*]
En banc. Error to District Court, Larimer County; James Owen, Judge.
Action by Lizzie B. Harrington against Fred M. Harrington. Judgment for defendand plaintiff brings error. Writ of er
Rev. St. 1908, § 2123, authorizes appeals or writs of error to review decrees granting di-ant, vorces, provided that such writ of error shall ror dismissed. be sued out within six months from the date of
the decree. Sess. Laws 1911, p. 11, § 6, expressly repeals all statutes granting and regulating "appeals" from the district, county, and juvenile courts, in all actions, suits, and proceedings civil and criminal. Section 8 provides that a writ of error shall not be sued out after three years from the judgment or decree complained of. Section 25 repeals the subdivision of the Code of 1903 (Code Civ. Proc. §§ 419441) relating to appeals and writs of error generally, and all acts and parts of acts inconsistent therewith. Held, that section 2123, so far as it requires writs of error to review decrees of divorce to be sued out within six months, is not repealed by the act of 1911, as the effect of that act was to amend the Civil Code, and it does not amend or repeal statutes controlling proceedings to which the Civil Code does not apply, unless it does so directly, and there is no repugnancy or necessary contradiction between the provision of section 2123 and the pro
visions of the act of 1911.
[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 570-573; Dec. Dig. § 184.*] 2. STATUTES (§ 159*)-REPEAL-IMPLIED REPEAL.
A statute without negative words will not repeal existing statutes, unless there is an unavoidable repugnancy.
[Ed. Note. For other cases, see Statutes, Cent. Dig. § 229; Dec. Dig. § 159.*] 3. STATUTES (§ 158*)-REPEAL-IMPLIED REPEAL.
Courts should be reluctant to sanction the repeal of an existing legislative enactment, unless it clearly appears by the terms or operation of the later act that it was the unmistakable intention of the Legislature to accomplish that end; especially where the earlier act is founded on experience and grave considerations of public welfare.
[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 228; Dec. Dig. § 158.*]
L. D. Thomason and F. J. Annis, both of Ft. Collins, for plaintiff in error. Lee & Aylesworth, of Ft. Collins, for defendant in error.
BAILEY, J. As plaintiff, Lizzie B. Harrington, plaintiff in error here, brought action for divorce against the defendant, Fred M. Harrington, defendant in error here, in the District Court of Larimer County. October 22nd, 1910, the jury rendered a verdict against her and in favor of defendant, upon cross-complaint. Plaintiff filed a motion for a new trial, which was denied. 6th, 1910, judgment was rendered on the verdict in favor of defendant, but entry thereof suspended for ten days. Nothing more was done in the case until May 1st, 1911, when the decree of divorce was formally entered of record, and plaintiff prayed and was allowed an appeal to this court. On August 19th, 1911, plaintiff abandoned her appeal to this court, and filed a motion in the court below for an order vacating and annulling the decree entered on May 1st and setting aside the order denying the motion for a new trial, requesting that she be permitted to file additional grounds for a new trial. It appears that defendant remarried in another state before the actual formal entry of the divorce decree in his favor. This alleged bigamous act was relied upon in the motion to reopen and vacate the decree, which was overruled September 5th, 1911. On this day the defendant interposed a motion to have the decree of divorce which was entered of record May 1st, 1911, amended by adding to the last sentence thereof the words: "Done as of December 16, 1910," which was allowed and the amendment made accordingly.