(dissenting).

I am unable to concur in the conclusion that the evidence in this case is sufficient to support the verdict and therefore dissent.

(dissenting).

I feel that the interests of justice require a new trial.

Defendant was convicted of the crime of rape and appealed from an order denying his motion for a new trial. It is contended that the order is erroneous because the evidence does not support the verdict.

At the time of the alleged commission of the offense the prose-cutrix was 19 years of age, unmarried, employed in the store of Ben Chozen, a merchant in Jackson, Minnesota, and lived with his family. The defendant was 89 years of age, married, and employed in the store of his father-in-law, A. L. Warnke. The Chozen and Warnke stores were in the same building, and the prosecutrix and the defendant had been acquainted for several months prior to Friday, July 17, 1925. Shortly after eight o’clock in the evening of that day, the prosecutrix left the Chozen house ostensibly to call on a woman by whom she had once been employed as a domestic servant. She testified that while on her way she was overtaken *188 by the defendant, who invited her to ride with him to her destination. He was driving a Ford sedan, which she entered. He drove past the house to which she was going and out on a country road, where he stopped the car, pulled her to the rear seat and assaulted her, hut before he had fully accomplished his purpose the lights of an approaching car came in sight and defendant drove back to the place where he had picked her up, going by a route which led through the streets of Jackson. Soon after the prosecutrix got out of the car, Chozen came along in his car, which she entered. Chozen charged her with having been out with the defendant and, becoming incensed at her denials, compelled her to get out of his car. When she said she would drown herself, he replied that it was the best thing she could do, and drove home, leaving her at a bridge over the Des Moines river. Later in the evening she returned to the Chozen house and was again charged with having been out with defendant. The prosecutrix testified that she was hysterical and unable to talk coherently, and that finally Chozen said: “If you can’t tell it, why write it,” whereupon she wrote on a scrap of paper: “I am sorry I ever gave you any reason to think I was ever with him,” and a little later: “Miller has misled me, but I give you my word of honor I will never have anything to do with him from now on. Ann.”

On Saturday morning when Chozen met the defendant he accused defendant of having been out with the prosecutrix the night before. A little later, when she came to the store, defendant called her aside and said: “Ann, did you tell Chozen I was out with you last night?” Turning to Chozen, who had come to the place where they were, the prosecutrix said: “Ben, I told you last night that I never was out with Mr. Miller in my life.” Angered at this, Chozen told her she could not work for him any longer and sent her home. Later in the forenoon defendant went to see the county attorney, who called . Chozen to his office in the afternoon. The prosecutrix accompanied him and privately told the county attorney and the sheriff that she had driven with defendant on Friday evening, but did not tell them that he had ravished her. She worked in Chozen’s store on *189 Saturday evening, and on Sunday accompanied the Cbozen family to Fox lake on a pleasure trip. On the following Wednesday sbe told Mrs. Cbozen that sbe bad been ravished. This was ber first complaint to anyone. On Wednesday evening a physician was called, who examined tbe prosecutrix and discovered no physical evidence of ber alleged violation. She testitfied that, as a result of tbe attack, one of ber ankles was injured and swollen and ber thigh bruised, but tbe doctor testified that be saw no bruises and that ber anide did not appear to be swollen. While he was examining ber, sbe told him that sbe bad been ravished.

Defendant was arrested and bound over to tbe grand jury after a preliminary examination. He was indicted and tried twice. He flatly denied tbe charge, admitting only that while driving about Jackson on tbe evening in question be had seen tbe prosecutrix on tbe street three times. Tbe first trial resulted in a disagreement, and tbe second in a conviction. In denying a new trial, tbe trial judge said: “I have examined this evidence with care, and am of tbe opinion that whatever inconsistencies, contradictions or improbabilities that may exist are questions for tbe jury.”

We gather from tbe record and tbe briefs and arguments of counsel that it was tbe theory of tbe defense that tbe story told by tbe prosecutrix was a pure fabrication, that Cbozen induced ber to tell it to avert suspicion from himself, and that, if any offense was committed, Cbozen was tbe offender.

There are many inconsistencies in tbe testimony of tbe prosecu-trix, but throughout a prolonged cross-examination sbe adhered to the testimony sbe gave on ber direct examination. Considering ber youth and apparent inexperience, it would seem that if tbe story was manufactured from beginning to end sbe would have broken down under tbe merciless cross-examination to which sbe was subjected. Standing alone, ber testimony is not so inherently unreasonable or improbable that we can say there was error in tbe trial court’s refusal to set tbe verdict aside. Sbe testified directly and explicitly to tbe facts necessary to establish tbe crime charged. Tbe defendant’s denial was as direct and explicit. If tbe testimony of tbe prose- *190 cutrix was worthy of belief, it was sufficient to justify the jury in finding the defendant guilty. State v. Lightheart, 153 Minn. 40, 45, 189 N. W. 408; State v. Schomaker, 149 Minn. 141, 182 N. W. 957; State v. Greenstein, 162 Minn. 346, 202 N. W. 892.

But defendant’s counsel lay great stress upon subsequent events, contending that they overcome any weight which might otherwise be accorded to the testimony. They point to the fact that the prose-cutrix repeatedly denied that she had been with the defendant on Friday evening, to her change of front on the following Wednesday, to the fact that she continued to remain in Chozen’s employment and to live in his house after his brutal conduct toward her on Friday evening and Saturday morning, and to his manifest desire to fasten a criminal charge upon the defendant.

The state meets this line of argument by pointing to the natural desire of the prosecutrix to avoid publicity, which may have been the motive which led her for a time to deny that she had been with the defendant; to defendant’s admission that he had said that he had seen Chozen following the girl; to Chozen’s knowledge of defendant’s accusations and consequent anger; and to the improbability that Mrs. Chozen would have permitted the prosecutrix to remain in her house, or that the brother of the prosecutrix, living on a farm near Jackson and present at the trials, would have permitted his sister to remain there if Chozen was unduly intimate with her.

If the prosecutrix was nothing more to defendant than a passing acquaintance, it is difficult to understand why he should concern himself with her relations with Chozen. The actions of both men indicate that they were suspicious and that each was ready and willing to accuse the other of improper conduct. Jackson is a city of about 2,500 inhabitants. Chozen and the defendant have lived there for several years. By reason of their occupations they must be well known in the city and among the people who trade there. It is reasonable to suppose that the reputations they bore were known to some members of the jury. The case must have attracted considerable local attention. Under all the circumstances, it seems *191 to us that the jury would not be likely to convict the defendant upon a tramped up charge. The trial judge had the advantage of seeing and hearing the witnesses at two successive trials. He could hardly have failed to detect the falsity of the accusation if it were false in fact. He gave his unqualified approval to the verdict. Great weight must be given to this fact. His charge to the jury was a clear and accurate statement of the issues to be determined and of the applicable legal principles.

We conclude that the order appealed from should be affirmed and it is so ordered.