By the Court, Crockett, J.:
The indictment charges the defendant with the crime of rape, alleged to have been committed on the person of a child' under ten years of age. At the trial he was convicted of an assault with the intent to commit rape, and was sentenced to confinement in the State Prison for fourteen years. He appeals from the judgment and from the order denying his motion for a new trial. It appeared in evidence, that the child on whom the assault is alleged to have been made, is a step-daughter of the defendant, and was residing on a farm, in the same house with the defendant and his wife, the mother of the child. At the time of the trial, she was under thirteen years of age, and was the only witness called to prove the accusation. She testified not only to the assault, with the intent to commit rape, but also to the complete accomplishment of the criminal intent. No witness was called to corroborate her testimony in any particular, as to time, place, or circumstances, or in any respect whatever^ except as to her age. . The defendant, who testified in his own behalf, explicitly denied the truth of her testimony in respect to the alleged assault and the perpetration of the crime. Her version of the affair is, that the offense was accomplished in the barn, about fifty yards distant from the dwelling house; and that immediately afterward the defendant ordered her to assist her younger brother—a boy five or six years of age—to carry from the barn to the house a box *543of soap of the usual size; that on reaching the house with the soap she found her mother engaged in her usual household duties, but did not state to her the occurrence at the barn; and on the contrary, proceeded to assist her about her household affairs as usual; that no bleeding resulted from the assault upon her, and it does not appear that she complained of any pain or injury. She further testified that she did not inform her mother of the occurrence at the . barn until about two years afterward, and she assigns as a reason for her silence that he threatened to kill her if she disclosed the facts, and that she was afraid of him. Two physicians were called, who testified that though it was not impossible for a man to have carnal knowledge of a child of such tender years, it was in the highest degree improbable that bleeding and great bodily pain would not ensue. This was all the testimony; and on these facts we are asked to award a new trial, on the ground that the evidence was insufficient to support the verdict. The almost uniform practice of this and other appellate Courts is, to refuse to disturb verdicts on this ground when there is a substantial conflict in the evidence. The rule is founded on the fact that the jury had the opportunity to observe the demeanor of the witnesses, and is, therefore more competent than we to decide upon their credibility. The rule is a most salutary one, and ought not to be lightly departed from. Nevertheless, there are exceptional cases, in which the preponderance of evidence against the verdict is so great as to produce a conviction that, in rendering it, the jury must have been under the influence of passion or prejudice. Such was the case of the People v. Benson, 6 Cal. 221" court="Cal." date_filed="1856-07-01" href="https://app.midpage.ai/document/people-v-benson-5433122?utm_source=webapp" opinion_id="5433122">6 Cal. 221, which was also a prosecution for rape on a girl thirteen years of age, who was the sole witness to prove the charge. She testified positively to the forcible commission of the act of sexual intercourse on the occasion complained of, but admitted on cross-examination, *544that on many previous occasions she had had carnal intercourse with the defendant, and on none of them had made any outcry, though the defendant’s wife was in the adjoining room; nor had she ever disclosed the facts to his wife; assigning as a reason for her silence, that she was afraid the defendant would kill her. The defense introduced evidence of the bad character of the prosecutrix for chastity, and that she had frequently expressed feelings of friendship for the defendant. On these facts the defendant was convicted, and on appeal this Court said that the story of the girl was “so improbable of itself as to warrant us in the belief that the verdict was more the result of prejudice or popular excitement than the calm and dispassionate conclusion upon the facts by twelve men sworn to discharge their duty faithfully. * * * A conviction upon such evidence would be a blot upon the jurisprudence of the country, and a libel upon jury trials.” In some respects the present case is very similar to People v. Benson, just noticed. The charge rests upon the uncorroborated testimony of a child, who, at the time, was under ten years of age; and who not only made no outcry, but immediately went about her daily duties, as though nothing unusual had occurred, and failed, for two years, to disclose the facts, even to her mother. When, in addition, she admits that no flow of blood followed the alleged outrage, and it does not appear that she suffered or complained of any bodily pain, it is almost inconceivable that a jury free from passion or prejudice, would not, at least, have entertained a reasonable doubt as to the guilt of the defendant. A charge of so heinous a nature, when supported by even the slightest evidence, arouses in the public mind an intense indignation against the supposed culprit; and it is not surprising that the same feeling sometimes finds its way into the jury box. That it did so, to some extent, in the present case, is manifest from the unseemly conduct of one of the jurors, who in the progress of the trial interrupted *545the counsel for the defense in a most improper manner, and evinced clearly that he was under the influence of passion or prejudice, or both.
On the whole, we think the énds of justice demand that the cause shall be tried anew.
Judgment reversed and cause remanded for a new trial; remittitur forthwith.
Neither Mr. Justice Belcher nor Mr. Justice Niles expressed an opinion.