| Ark. | Nov 4, 1905
(after stating the facts.) 1. The indictment does not allege the previous chastity of the seduced female, and appellant demurred to the indictment on that ground. This court recently held in the case of Caldwell v. State, 73 Ark. 139" date_filed="1904-12-03" court="Ark." case_name="Caldwell v. State">73 Ark. 139, that in a prosecution for this offense it is unnecessary for the State to allege or prove the previous chastity of the female, but that the defendant can show as a defense that she was not previously chaste. We are urged by learned counsel for appellant to overrule that decision and hold to the contrary, but we entertain no doubt of the correctness of. the principles therein announced, and the same are now adhered to.
2. Appellant filed his motion for continuance in the Benton Circuit Court, which was overruled, and a change of venue was then granted upon his petition, thus postponing the trial for about a month. When the case was called for trial in the Washington Circuit Court, he again presented a motion for continuance, so that he could procure the testimony of absent witnesses. .The court overruled the motion, and that ruling is assigned as error. It appears that both of the absent'witnesses were out of the State,- and the circuit judge had previously in vacation, upon application of appellant, made an order allowing him to take the depositions of the witnesses, and one deposition was ¡taken by appellant pursuant to this order. No reason is given why the depositions of other witnesses were not taken. Continuances of cases are matters within" the sound discretion of the trial court, and we see no abuse of the discretion in this case. Puckett v. State, 71 Ark. 62" date_filed="1902-11-29" court="Ark." case_name="Puckett v. State">71 Ark. 62.
Appellant in his motion for continuance stated as further grounds that the prosecuting witness (the seduced female) “had long been subject to some nervous malady causing hysterics or mental delirium, and had recently suffered an attack from same, and was not at the time of calling of this case for trial recovered from such attack; that the importance of the case would necessitate her remaining on the witness stand an indefinitely long time, and undergoing vigorous cross-examination, which would excite the sympathy of the jurors for her and greatly prejudice the defendant's defense; that in fairness to him he ought not to be compelled to p cross-examine the prosecutrix in her present physical condition.” This states no grounds for continuation of the case. The court could not assume in advance that the woman’s physical condition, or the character of the cross-examination of appellant’s counsel, would be such as to excite the sympathy of the jury, and to prejudice them against him. If so, the fear of exciting sympathy for the wronged would forbid the courts from bringing to speedy trial persons accused of almost any crime. Moreover, the determination of that question fell fairly within the sound discretion of the trial court; and, as no abuse of it appears, we will not disturb its exercise.
3. Appellant asked the court to instruct the jury, in substance, that if he made the promise of marriage in good faith, and it was his intention, at the time of the first act of intercourse, to carry out his promise, he would not be guilty of seduction, even though, after the act of intercourse, 'he refused to carry out the promise.' The court declined to so instruct, and properly so. This is not the law. A man who seduces a chaste female under promise of marriage cannot refuse to carry out his promise. Public policy forbids that he should be permitted, after committing the act of intercourse under promise of marriage, to say that he had. intended to carry it out, but changed his mind and concluded not to do so.
4. It is strenuously urged that the prosecuting witness was not sufficiently corroborated, and that the verdict is not supported by the evidence.
The court properly instructed the jury that, before a conviction could be had, the testimony of the prosecuting witness must be corroborated as to the promise of marriage and the sexual intercourse. Appellant admitted the promise of marriage, and the testimony of one other witness tended to show an act of sexual intercourse between appellant and the prosecuting witness. It is contended, however, that the testimony of this witness tended to prove an act of intercourse subsequent to the first of such acts, as shown by the testimony of the prosecuting witness, and is not in corroboration of her testimony. We do not think this contention is sound. It is sufficient if it tends to show acts of sexual intercourse, whether they be the first of such acts with the accused or not, provided they be at the time or subsequent to the time of the promise of marriage.
We think the evidence was sufficient to support the verdict', and the jury were properly instructed as to the law.' So the verdict will not be disturbed.
Affirmed.