104 S.W. 809 | Ct. App. Ind. Terr. | 1907
(after stating the facts as above). There are 17 specifications of error assigned. They are long and argumentative, and it would require too much space in this opinion to set them out in full. They occupy 12 pages of the printed brief. A demurrer was filed to the sufficiency of the indictment, on' the ground that it did not allege that the prosecuting witness was chaste previous to the alleged act of intercourse. The demurrer was overruled, and exception saved. This alleged error constitutes the first assignment. The court, in its charge, in defining chastity, said: “By chaste character in a case of this kind is meant virtue.” This definition was made the grounds of the seventh specification of error. The court, in its charge, further said: “You are further instructed that the .prosecutrix is presumed to be virtuous, and that the burden is upon the defendant to prove her want of virtue and chastity at the time of the alledged intercourse.” This is the ninth error assigned. The thirteenth specification is that the court erred in refusing an instruction to the effect that mere proof of general reputation for chastity is not sufficient, but it must be shown that the woman possessed actual, personal chastity. This was substantially given by the court in its general charge, and we will notice it no further. The fourteenth assignment is that the court refused to instruct the jury that, “while the. previous chaste character of the female is presumed, such presumption is overcome by the presumption of the inno
Having disposed of the thirteenth and fourteenth assignments, and as the first, seventh and ninth relate substantially to the same question, we will consider them together. The demurrer was properly overruled. The statute is as follows, section 1587, Mansf. Dig. (Ind. Ter. Ann. St. 1899, § 930): “Any'person who shall be convicted of obtaining carnal knowledge of any female by virtue of * * * any false or feigned promise of marriage, shall, on conviction, be imprisoned not exceeding two years,” etc. Seduction is not a common-law offense. It is one that is created by the statute, and therefore we must go to the statute for its definition; and in such cases it is usually, if not always, sufficient ,to set out the offense in the indictment in the language of the statute. “In drawing indictments under a statute which enacts and defines the offense, it is best, with rare exceptions, to follow the exact words of the statute, for then all doubt will be avoided, and simply the proof demanded by law, and no more,- will be called for by the indictment.” Bishop, New Cr. Proc. 612. And speaking generally of indictments for the crime of seduction, Mr. Bishop (section 645, Id.) says: “In general it is sufficient to charge this offense in the words of the statute, adding the time and place and the names of persons.” The indictment in this case is in the language of the statute, and is therefore good. Putman vs State, 49 Ark. 249, 5 S. W. 715; Bodenhamer vs State, 60 Ark. 10, 28 S. W. 507; Cheaney vs State, 36 Ark. 74.
It seems from the record that* after the jury had been out considering of their verdict for about 20 hours the court called them into the courtroom, and among others gave to them the following additional instruction: “If you believe from the evidence that the prosecutrix had had intercourse with the witness Graham some months prior to her engagement,
The defendant requested the following instruction: '“You are instructed that the defendant in this case cannot be convicted upon the strength of any promises made by the defendant to the prosecutrix subsequent to the birth of her .said child, and that the evidence of such promises then made ■■are only to be .considered by you as circumstances to corroborate the testimony of the prosecutrix that she was seduced by the defendant upon the express promise there made to marry her, given by him to her at the time she submitted to his embrace.” When it is considered that the proof of the promise of marriage, aside from the statement of the woman, largely depended upon the evidence of that fact contained in the lettei'S of defendant, written to the prosecutrix, and that •of the 20 letters admitted in eAÚdence, 12 of them were written .after the act of seduction, and a number of them after the birth of the child, and that the- later ones contained stronger 'evidence of a promise than the earlier ones and that the court .had not in its general charge, instructed the jury on this point dihe requested instruction, we think, ought to have been given.
As to the other assigned errors, after a careful examination, we think there is no error in them. One of them is that ¡at one time during the trial the judge, speaking of the woman, ■called her a “girl.” Of course, there is nothing to this exception. Another is that the prosecutrix, having testified that while she knew there was something the matter with her, did not know or realize that she was with child until about the time ■of its birth, the court sustained an objection to the proffered
For the errors above pointed out, the judgment of the-court below is reversed.