The indictment is sufficient, and the-Court properly denied the motion in arrest of judgment. Two or more men may commit the single crime of rapе by being present, aiding and abetting the actual ravisher in the perpetration of the offence. At the common law, all such offenders are equally principals and' alike participate in the crime and guilt. They may, therefore, all be indicted together in the same manner as the one who directly does the injury. ' The statute of this State in respect to rape does not change or mоdify the common law as to persons present, aiding and abetting in the perpetration óf that crime. Hale’s PI. Cr., 629; 1 Bish. Cr. L., § 1090; Rex v. Folks & Ludds, 1 Moody’s Cr. Cases, 354. The seсond count is unnecessary, and is no more than redundant matter. The evidence for the prosecution went to prove that both the prisoners actually ravished the prosecutrix, and that there were two distinct rapes — one by each of them — committed upоn her; but it also went to prove that each of the prisoners was present aiding and abetting the other in the perpetration оf the offence actually committed by him. There w;as evidence to prove that they were each guilty of both offences. But this state pf the evidence did not affect the sufficiency of the indictment. The latter was sufficient, and there was evidence from which the jury might render.a verdict of guilty upon it.
The assignment of error as to the exclusion of the evidence of the committing Magistrate must be sustainеd. On the *494 trial, the prosecutrix, testifying as a witness for the State, among other things, said: “Then Jack held her husband while Dred raped her; that it was donе violently, with force and intimidation, neither she nor her husband assenting thereto, and she had been sick ever since.”
Each of the prisonеrs was examined as a witness for the defence, and admitted that he had had carnal knowledge of the proseculrix at the time аnd place alleged, and “ testified that she consented to sexual intercourse.”
The prosecutrix had been examined as a witness before the committing Magistrate. On the trial, the prisоners proposed to contradict and impeach her by showing that she testified before the Magistrate on the preliminary exаmination, “ that her husband told her to let him, the said Jack (one of the prisoners), have intercourse with her while he had hold of her.” That such was the purpose of the examination of the Magistrate, and the introduction of the written evidence of the prosecutrix takеn by him, sufficiently appears from the evidence of the prosecutrix above recited, the testimony of the prisoner just recitеd, and the questions put to the Magistrate. It appears, from strong implication and inference, that the purpose was to cоntradict the prpsecuting witness in the respect just mentioned.
The Magistrate testified clearly that the written statement of the evidence of the prosecutrix, taken by him on the preliminary examination of the prisoners, was correct and true. It must be assumed that it would tend to show what the prisoners proposed to prove bv it. Then, was that written statement competent evidence? We think it was cоmpetent for the purpose of showing, in some measure, that the prose-cutrix had given, under oath, a different account of mаterial facts connected with the rape charged, in her examination before the committing Magistrate, from what she testified to on the trial, and thus to discredit her. The Magistrate said he could not state on the strength of his recollection what
*495
she testified to before him, bat he said that he took her evidence down in writing, and he took it truly; that the written evidence before him was taken by him, and containеd a correct and true statement of what she said. It is clear he might, if he could, have testified as to what she said before him. Then, if he could so testify, why was the written evidence taken and identified by him-as true, not competent? His memory in the lapse of time and from other сauses might fail, but the true written statement could not change; it spoke the truth when it was offered in evidence as certainly as it 'did the day it wаs written. If it was taken truly, it was safer, stronger, more reliable than the unaided memory of any witness. It has been held by this Court, after much reflection, in
State
v.
Pierce,
It is to be observed that the purpose of the evidence excluded is not to contradict the prosecuting witness as to something merely collateral, but to show that shе gave contradictory accounts of the-very matter in question. It was not, therefore, necessary to ask the witness what she said on the preliminary examination before offering evidence of her contradictory statements.
Jones
v.
Jones,
It is further to be observed that the written statement of the evidence of the prosecutrix was not offered as substantive evidence as allowed in approрriate cases by the statute (The Code, § 1157). It was not sufficient for that purpose, because, as appears, it had not been taken in conformity with the statute. That it was not signed by the witness did not ren *496 der it incompetent when offered as evidence in the present case. State v. Pierce, supra; Bryan v. Moring, supra.
The contradictory evidence was relevant and competent. The prisoners testified that the prosecutrix assented to their sеxual intercourse with her. In view of their contention, if the husband, who was present at the time of the perpetration of the allegеd rape, told the prosecutrix to have such intercourse with the prisoner Jordan, this would be some evidence of what was said аnd done, and it might have had some weight with the jury. But the contradictory statement was not offered to prove that the husband did so instruct his wife, but to disсredit the wife as a witness by showing that she made the statement under oath at one time in one way, and a statement on the trial under oаth just the reverse, as as to what was said by her husband at the scene of the rape. The purpose was to satisfy the jury that she was unworthy of credit.
It is not sufficient to say that the evidence was unimpor- ■ tant. It was evidence the prisoners were entitled to have submitted to thе jury, and it was their province to determine its weight in connection with other evidence before them. It is our province and our solemn duty to determine and apply the law.
The prisoners are entitled to a new trial, and we so adjudge.
Error.