Lind v. State
207 S.W. 47
Ark.
1918
Check Treatment
WOOD, J.,

(after stating the facts). 1. Under Section 2044 of Kirby’s Digest, one who is being prosecuted for seduction may have the prosecution suspended by marrying the female alleged to have been seduced, and the prosecution shall not be revived unless the accused wilfully and without legal cause abandons such female. This statute was for the benefit of the accused and was intended to give him an opportunity to volutarily condone his offense by making reparation as far as possible to the injured female whose confidence he had betrayed. But the statute has no application in a case where the defendant has submitted to a marriage ceremony under duress. Therefore, if it be true, as appellant contends, that he was forced to submit to the marriage ceremony, then there was no marriage at all and hence no wilful abandonment, and the statute under his own contention would have no application.

Under the evidence adduced, the reading of the above statute was abstract, but it could not have prejudiced appellant’s rights. For if the ceremony was forced upon the appellant, then the prosecution should not have been suspended, and if the marriage ceremony was valid, then the undisputed testimony shows that appellant without any legal cause wilfully abandoned the prosecutrix.

2. Appellant admitted the sexual intercourse, and further corroboration of the prosecutrix as to this was unnecessary. The testimony of the father of the prosecutrix as to the conversation he had with appellant on the first trip to Oklahoma tended to prove that the confession made by the appellant as to the promise of marriage was voluntary. The confession having once been voluntarily made, the fact that appellant afterwards repeated the confession under circumstances which tended to prove that he was under duress, did not destroy or lessen the effect of his previous voluntary confession and the testimony of the Wilders as to what took place in and on the way to Snodgress’ office concerning the confession as to the promise of marriage was in no manner prejudicial to the appellant. The prosecutrix, under the facts set forth in the statement, was corroborated by competent testimony as to the promise of marriage. See Oaks v. State, 135 Ark. 221; Patrick v. State, 135 Ark. 173.

The appellant could not have been convicted upon his confession alone. Sec. 2385 of Kirby’s Digest; Melton v. State, 43 Ark. 367; Hubbard v. State, 77 Ark. 126; Greenwood v. State, 107 Ark. 581; McLemore v. State, 111 Ark. 457. Nor could he have been convicted alone upon the uncorroborated testimony of the prosecutrix. Sec. 2043 of Kirby’s Digest.

But there is nothing in these statutes and decisions which forbids conviction on a charge of seduction upon the testimony of the prosecutrix when corroborated by the confessions made by the accused out of court. On the contrary, while the proof of the corpus delicti by the testimony of the prosecutrix alone would not be sufficient to convict, yet when her testimony establishing the corpus delicti is corroborated by the confessions of the accused out of court, the testimony of the two combined is sufficient to convict, there being no statutory or common law rule to the contrary. The statutes referred to do not prohibit the introduction of the testimony of the prosecutrix and of the introduction of the testimony showing the confessions of the accused out of court, nor the consideration of same by the jury. We know of no rule of law which prohibits a conviction upon the testimony of the prosecutrix when corroborated by the confessions, out of court, of the accused. See Hubbard v. State, supra, syllabus 2; Harshaw v. State, 94 Ark. 343, syllabus 2; Meisenheimer v. State, 73 Ark. 407; McLemore v. State, supra. The court did not err in refusing appellant’s prayers Nos. 22 and 22% for instruction to the contrary.

3. The court instructed the jury, in conformity with the law as announced in many of our previous decisions in substance, that in order to convict the defendant the jury must find from the evidence beyond a reasonable doubt that the accused obtained carnal knowledge of the prosecutrix by virtue of an express promise of marriage, and that the testimony of the prosecutrix must be corroborated both as to the promise of marriage and the aetof sexual intercourse; that the previous want of chastity was matter to be set up in defense, and that the burden was upon the defendant to prove it by a preponderance of the evidence; that if the evidence on that issue in connection with the other evidence raised a reasonable doubt in the minds of the jury as to the guilt of the accused, he was entitled to an acquittal; that the burden rested upon the State to prove the guilt of the accused beyond a reasonable doubt. The court correctly declared the law on reasonable doubt, credibility of witnesses, and the burden of proof. Also correctly submitted to the jury the issue as to whether the appellant confessed to the crime charged, and as to whether these confessions were freely and voluntarily made, and instructed them that unless they were so made the jury could not consider them.

The appellant, among other instructions, prayed the court to instruct the jury that, before the appellant could be convicted, they must find that he obtained carnal knowledge of the prosecutrix solely and alone by virtue of the promise of marriage. The court struck out the words “solely” and “alone” but instructed the jury, as before stated, that before the appellant could be convicted the testimony must show that he had sexual intercourse with the prosecutrix by virtue of a promise of marriage, and the court further instructed the jury at the request of the appellant as follows: “If you find from the testimony that the prosecutrix yielded her virtue to the defendant because of any other reason than an express or feigned promise of marriage made to her by him, you should find the defendant not guilty.”

The appellant contends that because there was testimony tending to prove that the prosecutrix’s reputation for morality was bad and because she testified that she consented to the act of sexual intercourse on account of his promise to marry her and her love for him, the court erred in striking from appellant’s prayer the words “solely” and “alone”; that the striking of these words prevented the jury from considering whether or not the intercourse on the part of the prosecutrix was prompted by her lustful passion, rather than by the promise of marriage. In Taylor v. State, 113 Ark. 525, we used the following language concerning our seduction statute: “But this statute can only be invoked by the female who to the very time of her fall had held her virtue, so to speak, as ‘the immediate jewel of her soul,’ and who was only induced to surrender it through the promise of the man whom she trusted to marry her and solely from a desire to have him keep that promise. The woman who yields her virtue for sexual'pleasure and uses the promise of marriage only as a cloak or subterfuge to hide her disgrace, is not within the pale of the protection of this particular statute.”

The court did not err in its ruling. The jury were expressly told that if the prosecutrix yielded her virtue “because of any other reason than an express or feigned promise of marriage made to her by him' they should ao quit the defendant.” The appellant presented 30 prayers for instructions, and it would unduly prolong this opinion to discuss his exceptions to the ruling of the court in passing upon these prayers. Some were given as asked, others were modified and given, and others refused. The charge of the court taken as a whole was exceptionally free from error. It covered fully every phase of the case as developed by the testimony adduced.

4. The court did not err in refusing a new trial on the alleged ground of newly discovered evidence. The minutes of the testimony before the grand jury could not be used as original evidence. These minutes are preserved for the use of the grand jury and the prosecuting attorney. Secs. 2195, 2196 of Kirby’s Digest. The prosecutrix might have been impeached by showing that she made statements in her testimony before the grand jury contradicting those she made on trial, but the minutes before the grand jury could not be used for such purpose. They could only be used to refresh the memory of members of the grand jury who might have been called as witnesses on the issue as to whether she had made contradictory statements. The testimony of witness Gean would have been competent but no proper foundation was laid for thé introduction of such testimony by asking the prosecutrix whether she had made the alleged statement before the grand jury.

The cases of Bussey v State, 69 Ark. 545, and Myers v. State, 111 Ark. 399, upon which learned counsel for appellant rely are not applicable for the reason that in those cases the prosecutrix, having testified to a certain state of facts at the trial, afterwards made an affidavit to the effect that her testimony given at the trial was untrue. Here the prosecutrix has made no such affidavit and no such issue is raised. Moreover, the appellant does not set up in his motion for a new trial on the ground of newly discovered evidence, facts showing that he had used due diligence. The indictment was returned in February and the trial was not had until June thereafter. The appellant does not set up and prove that he could not have discovered this evidence as well soon after the indictment was returned against him as during the few days that intervened between the trial and the filing of the motion. The memorandum was on file. The appellant must have anticipated that the prosecutrix had testified before the grand jury and would testify on the trial to facts that would tend to support the charge, and due diligence exacted of him that he should make reasonable inquiry to discover any facts in existence that would tend to break down her testimony. The party asking for a new trial for newly discovered evidence should not only state in his motion that he did not know of the existence of the testimony in time to produce it at the trial, but should also show facts from which it will appear that he could not have ascertained or obtained it by reasonable diligence. McDonald v. Daniel, 103 Ark. 589; Ary v. State, 104 Ark. 212, and other cases collated in Crawford’s Digest, 3817-18, § 42.

There are no reversible errors in the record, and the judgment is, therefore, affirmed.