137 Ala. 56 | Ala. | 1902
Prosecution for seduction. The State introduced the prosecutrix as'a witness, and she testified to an act of sexual intercourse between them at a certain time and place, that this was the first time he had sexual intercourse with her and that prior to this act he promised to marry her, and they had fixed the time for their marriage at the ensuing Christmas. After all this had been detailed by the witness, the State was allowed against defendant’s objection to show by her that a week after this first connection, defendant had sexual intercourse with her again, and that they continued to ha.ve sexual intercourse “regularly” for some' months afterwards. Defendant’s objection was put on the ground that by going into proof of the first sexual act in the way and to the extent we have indicated, the State had elected the time of the alleged seduction. We think the objection was well taken, and that the court erred in overruling it. See authorities cited on the brief for appellant. Of course, if the defendant had not objected to this evidence, but by not objecting consented to the1 several acts of sexual intercourse being laid before the jury, it would have been competent for the jury to base a conviction on any act induced by the statutory means, the woman being chaste prior to such act, and the act being within the period covered by the indictment, (Smith v. State, 107 Ala. 139) ; but that is a different question from the one here presented.
The 1st and 6th charges requested by defendant were mere arguments and, as the case is presented here, abstract.
As the case went to the jury, the court having declined to hold the State to an election as we have seen, charges 2, 3, 4, 5, 7, and 8 were properly refused. If the first intercourse was accomplished by means of force on the part of the defendant and against the will of the prosecutrix, she was thereby debauched in a physical but not in a moral sense, and was still chaste within the meaning of the statute, (Code, § 5503), so that seduction might be predicated of the second act of sexual connection, accomplished, as the evidence tends to show, with her consent induced by promise of marriage.
Reversed and remanded.
