Hammer

Defendant was charged with having committed rape upon the person of a girl under the age of eighteen years, the alleged victim having been of the age of sixteen at the time of the alleged offense. The jury rendered a verdict of guilty and defendant appeals from the judgment of conviction and from an order of the trial court denying his motion for a new trial.

The testimony of appellant, and of three other witnesses who corroborated him, established a perfect alibi, if the jury had elected to believe the evidence put forward by the defense upon that issue. The trial judge instructed the jury:

It is contended that the giving of this instruction was error, and the third and last paragraph is pointed at particularly in presenting the contention. Instructions of a character like unto this, in several instances practically identical with it, have been before the courts of review of the state many times. In the earlier cases the charge as a whole was held not to be erroneous. Later decisions characterized the matter contained in the third paragraph of the present instruction as incorrect when considered alone, but upheld the entire instruction on the ground that statements like those…