state that such evidence, and that of consultation by her with her parents regarding preparations for the wedding, can be shown against the defendant when the latter had no part therein and no knowledge thereof, the statement seems to be clearly erroneous, and it is criticized in a recent case wherein it is held that such evidence is no part of the res gestae, and comes clearly within the rule excluding acts and declarations merely self-serving and of a hearsay nature.63

§ 3150. Admissions.-The defendant's admissions may be used against him.64 The boasts of the defendant to his friends that he was guilty of illicit intercourse with the prosecutrix may be shown to prove the act, and the circumstances under which the admissions were made may be brought before the jury as tending to show deceptive practices and the true circumstances by which consent was obtained.65 It has also been said that the essential elements of the crime may be proved by the admissions of the defendant himself, including the chaste character of the female and the means by which the seduction was accomplished. But where the only direct evidence introduced to prove the crime consisted of the testimony of the female, a mere admission by the defendant that the prosecuting witness was a good girl and that he intended to make her his wife was held not to be a sufficient corroboration of her testimony.7 Letters of the defendant are admissible, in a proper case, which tend to criminate him.68 This is true even where they were written after the commission of the alleged offense, if they are first shown to be the defendant's letters.69 In both of the cases cited in the last note below the letters were written by the defendant to the prosecutrix after the alleged seduction.

evidence.-Circumstantial

$3151. Circumstantial evidence.-Circumstantial evidence is competent in prosecutions for seduction as in other cases. Evidence of the conduct of defendant toward the prosecutrix before and even

63 People v. Tibbs, 143 Cal. 100, 76 Pac. 904.

State v. Hill, 91 Mo. 423, 4 S. W. 121; Hausenfluck v. Commonwealth, 85 Va. 702, 8 S. E. 683; State v. Fitzgerald, 63 Iowa 268, 19 N. W. 202.

65 State v. Hill, 91 Mo. 423, 4 S. W. 121; State v. McClintic, 73 Iowa 663, 35 N. W. 696; Bailey v. State, (Tex. Cr. App.) 30 S. W. 669.

"Phillips v. State, 108 Ind. 406, 9 N. E. 345.

67 La Rosae v. State, 132 Ind. 219, 31 N. E. 798.

68 State v. Bell, 79 Iowa 118, 44 N. W. 244; Bracken v. State, 111 Ala. 68, 20 So. 636, 56 Am. St. 23.

Bracken v. State, 111 Ala. 68, 20 So. 636, 56 Am. St. 23; McTyier v. State, 91 Ga. 254, 18 S. E. 140.

after the seduction may be admitted to show whether the consent to the act was accomplished by means of persuasion or promise.70 The age, experience, artfulness, or innocent and confiding nature of the prosecutrix may be taken into consideration." Evidence that defendant committed or procured an abortion has been held admissible on the trial as tending to prove guilt.72 It has also been held that evidence which shows the animus of the prosecuting witness and that the prosecution is spite work may be introduced.73 Pregnancy and the birth of a child of course show intercourse, and illicit intercourse, if the woman is unmarried, and they may tend, at least with other evidence, to show that she was seduced," but they do not of themselves tend to show that the defendant was the seducer.75 This, however, may be shown by circumstantial evidence, such as that of opportunity and the relation and conduct of the parties.76 In a recent case testimony that the mother of the prosecutrix was dead and that the defendant was the father of her child was held relevant, and the court said that the fact that the mother was dead was admissible to show the situation and environment of the prosecutrix, "and to what extent she was protected or subject to the persuasions of the defendant. So, too, as to the evidence relating to the paternity of the child. The fact of its birth was a circumstance in proof of the fact that there had been

TO State v. Curran, 51 Iowa 112, 49 N. W. 1006; State v. Hayes, 105 Iowa 82, 74 N. W. 757; State v. Hemm, 82 Iowa 609, 48 N. W. 971; Powell v. State, (Miss.) 20 So. 4; Lewis v. People, 37 Mich. 518.

"People v. Gibbs, 70 Mich. 425, 38 N. W. 257; State v. Higdon, 32 Iowa 262.

12 State v. Kavanaugh, 133 Mo. 452, 33 S. W. 33, 34 S. W. 842; People v. Orr, 92 Hun (N. Y.) 199, 36 N. Y. S. 398, affirmed in 149 N. Y. 616, 44 N. E. 1127.

State v. Reeves, 97 Mo. 668, 10 S. W. 841, 10 Am. St. 349; see also, State v. Eckler, 106 Mo. 585, 17 S. W. 814, 27 Am. St. 372; People v. Clark, 23 Mich. 112.

ton, 100 N. Car. 443, 6 S. E. 232, 6 Am. St. 613.

75 State v. Coffman, 112 Iowa 8, 83 N. W. 721; State v. McGinn, 109 Iowa 641, 80 N. W. 1068; Armstrong v. People, 70 N. Y. 38.

76 Polk v. State, 40 Ark. 482, 48 Am. R. 17; Armstrong v. People, 70 N. Y. 38; State v. Thornton, 108 Mo. 640, 18 S. W. 841; Bailey v. State, 36 Tex. Cr. App. 540, 38 S. W. 185. As to whether the child may be exhibited to jury, see, People v. Tibbs, 143 Cal. 100, 76 Pac. 904; State v. Horton, 100 N. Car. 443, 6 S. E. 238, 6 Am. St. 613; and compare, Barnes v. State, 37 Tex. Cr. App. 320, 39 S. W. 684; State v. Clemons, 78 Iowa 123, 42 N. W. 562; State v. Brassfield, 81 Mo. 151, 51 Am. R. 234; Cunningham v. State, 73 Ala. 51.

sexual intercourse. This had to be established before there could be any conviction for seduction."77

§ 3152. Corroboration.-The statutes of many states have established certain rules of corroboration necessary before a conviction can be had for seduction. The rules vary to such an extent that the statutes must be consulted in each state.78 Some states seem to require a corroboration of every material fact,79 others a corroboration of the illicit intercourse and promises and some of the promise alone.81 Several states require corroboration to the same extent as in perjury cases.82 It is generally recognized that direct and positive proof is seldom obtainable, and the courts allow a wide range of circumstantial evidence to corroborate the evidence of the prosecutrix. 83 Where the statute simply requires corroboration without specifically stating upon what points or to what extent it is sometimes said that she must be corroborated on every material point, but unless the phrase "every material point” is given a restricted meaning the better rule seems to

78 State v. Kingsley, 39 Iowa 439; State v. McCaskey, 104 Mo. 644, 16 S. W. 511; State v. Curran, 51 Iowa 112, 49 N. W. 1006; State v. Smith, 54 Iowa 743, 7 N. W. 402.

84

V.

"Pike v. State, (Ga.) 49 S. E. briskie v. State, 43 N. J. L. 640, 39 680. Am. R. 610; State v. Reeves, 97 Mo. 668, 10 S. W. 841; La Rosae State, 132 Ind. 219, 31 N. E. 798; Galloway v. State, 29 Ind. 442, holds that if there is the positive testimony of one witness to the charge of false swearing, the corroborating evidence need not be equivalent to the testimony of a positive witness.

7 Andre v. State, 5 Iowa 389, 68 Am. Dec. 708; State v. Kingsley, 39 Iowa 439; Munkers v. State, 87 Ala. 94, 6 So. 357.

80 State v. Bauerkemper, 95 Iowa 562, 64 N. W. 609; State v. McCaskey, 104 Mo. 644, 16 S. W. 511; Kenyon v. People, 26 N. Y. 203, 84 Am. Dec. 177; People v. Kearney, 110 N. Y. 188, 17 N. E. 736; State v. Ferguson, 107 N. Car. 841, 12 S. E. 574; State v. Crawford, 34 Iowa 40; State v. Araah, 55 Iowa 258, 7 N. W. 601. 81 State v. Brassfield, 81 Mo. 151, 51 Am. R. 234; State v. McCaskey, 104 Mo. 644, 16 S. W. 511; Rice v. Commonwealth, 100 Pa. St. 28; State v. Hill, 91 Mo. 423, 4 S. W. 121.

83 Polk v. State, 40 Ark. 482, 48 Am. R. 17; Armstrong v. People, 70 N. Y. 38; People v. Kearney, 110 N. Y. 188, 17 N. E. 736; State v. Curran, 51 Iowa 112, 49 N. W. 1006; State v. McClintic, 73 Iowa 663, 35 N. W. 696; State v. Bell, 79 Iowa 117, 44 N. W. 244.

State v. Timmins, 4 Minn. 325; State v. Lockerby, 50 Minn. 363, 52 N. W. 958, 36 Am. St. 656; Zabriskie v. State, 43 N. J. L. 640, 39 Am. R. 610; Andre v. State, 5 Iowa 389, 68 Am. Dec. 708; see also, La Rosae v. State, 132 Ind. 219, 31 N. E. 798; Hinkle v. State, 157 Ind. 237, 61 N.

82 Burns Ind. Rev. Stat., § 1876; Za- E. 196.

be that it is sufficient if she is corroborated as to the fact that the defendant had sexual intercourse with her and obtained her consent by promise of marriage or such other seductive arts as the statute requires, but there must be corroboration as to these facts.85 The corroborative evidence may be circumstantials rather than direct, but it must come from some witness other than the prosecutrix herself.87 It has been held in a recent case that testimony of a witness that the defendant told him that he had promised prosecutrix to marry her was a sufficient corroboration of the marriage promise.88 In another recent case it is held that the court should, on request, instruct that the prosecutrix must be corroborated by other witnesses as to the promise of marriage and intercourse; and that the mere reading of the statute, with the statement that her testimony must be corroborated, is insufficient.89

§ 3153. Defenses.-The unchaste character of the prosecutrix where the statute requires previous chaste character, or her bad repute for chastity where the statute requires her to be of good repute, constitutes a good defense, and, as elsewhere stated, may be shown by proper evidence. So, it may be shown in defense that she voluntarily

90

Polk v. State, 40 Ark. 482, 48 Am. R. 17; Kenyon v. People, 26 N. Y. 203, 84 Am. Dec. 177; People v. Kearney, 110 N. Y. 188, 17 N. E. 736; Armstrong v. People, 70 N. Y. 38; State v. Curran, 51 Iowa 112, 49 N. W. 1006; State v. Crawford, 34 Iowa 40; Harvey v. Territory, 11 Okla. 156, 65 Pac. 837; Ferguson v. State, 71 Miss. 805, 15 So. 66, 42 Am. St. 492; see also, Suther v. State, 118 Ala. 88, 24 So. 43; Cunningham v. State, 73 Ala. 51; State v. Brown, 86 Iowa 121, 53 N. W. 92; State v. Bauerkemper, 95 Iowa 562, 64 N. W. 609; State v. Brown, 64 N. J. L. 414, 45 Atl. 800, 87 Am. Dec. 410, note; State v. Ferguson, 107 N. Car. 841, 12 S. E. 574; Barker v. Commonwealth, 90 Va. 820, 20 S. E. 776.

State v. Lauderbeck, 96 Iowa 258, 65 N. W. 158; State v. Brassfield, 81 Mo. 151, 51 Am. R. 234; State v. Eisenhour, 132 Mo. 140, 33

S. W. 785; State v. Brown, 64 N. J. L. 414, 45 Atl. 800; Bailey v. State, 36 Tex. Cr. App. 540, 38 S. W. 185; Wright v. State, 31 Tex. Cr. App. 354, 20 S. W. 756.

87 State v. McGinn, 109 Iowa 641, 80 N. W. 1068; State v. Hill, 91 Mo. 423, 4 S. W. 121; Cooper v. State, 90 Ala. 642, 8 So. 821; Munkers v. State, 87 Ala. 94, 6 So. 357; Mills v. Commonwealth, 93 Va. 815, 22 S. E. 863; McCullar v. State, (Tex. Cr. App.) 36 S. W. 585.

88 State v. Phillips, (Mo.) 83 S. W. 1080; but see, La Rosae v. State, 132 Ind. 219, 31 N. E. 798.

89 Keaton v. State, (Ark.) 83 S. W. 911.

93

submitted to gratify her own passion," for hire or the like,92 and not because of arts, wiles or promise of marriage by the defendant. It has also been held that the defendant may show that he was married or engaged to another woman, and that the prosecutrix knew it, or that the defendant and the prosecutrix had illicit intercourse before the time of the alleged promise of marriage," as tending to show that the alleged seduction was not accomplished through a promise of marriage. But the fact that the prosecutrix had sexual intercourse with other men after her seduction by the defendant is no defense." Proper evidence legitimately tending to show that the defendant was not the guilty party, or to show the absence of any one or more of the essential elements of the crime is, however, admissible in defense. In many jurisdictions it is provided by statute that the marriage of the seducer and the woman seduced shall constitute a bar to

People, 1 Park Cr. Cas. (N. Y.) 474, 37 Am. St. 834, note; see also, State v. Thornton, 108 Mo. 640, 18 S. W. 841.

91 People v. Nelson, 153 N. Y. 90, 46 N. E. 1040; O'Neill v. State, 85 Ga. 383, 11 S. E. 856; Keller v. State, 102 Ga. 506, 31 S. E. 92; People v. De Fore, 64 Mich. 693, 31 N. W. 585, 8 Am. St. 863, and note.

92 See, People v. Clark, 33 Mich. 112; State v. Fitzgerald, 63 Iowa 268, 19 N. W. 202; State v. Reeves, 97 Mo. 668, 10 S. W. 841, 10 Am. St. 349; Mrous v. State, 31 Tex. Cr. App. 597, 21 S. W. 764, 37 Am. St. 834.

93 State v. Brown, 86 Iowa 121, 53 N. W. 92; see also, Callahan v. State, 63 Ind. 198. But note that he was a minor too young to make a valid marriage, where the statutes make no limitation as to the age of the defendant. State V. Brock, (Mo.) 85 S. W. 595; People v. Kehoe, 123 Cal. 224, 55 Pac. 911; Kenyon v. People, 26 N. Y. 203, 84 Am. Dec. 177; Harvey v. State, (Tex. Cr. App.) 53 S. W. 102.

"State v. Brassfield, 81 Mo. 151, 51 Am. R. 234; Bowers v. State, 29 Ohio St. 542. But an honest inten

95

tion to marry where the promise was made, the defendant afterwards being prevented from performing it, has been held no defense. People v. Samonset, 97 Cal. 448, 32 Pac. 520; State v. Bierce, 27 Conn. 319; but compare, Caldwell v. State, 69 Ark. 322, 63 S. W. 59.

95 Bracken v. State, 111 Ala. 68, 20 So. 636; Anderson v. State, 39 Tex. Cr. App. 83, 45 S. W. 15; State v. Gunagy, 84 Iowa 183, 50 N. W. 882. So, where the prosecutrix had other young men come to see her after the alleged seduction has been held immaterial. People v. Tibbs, 143 Cal. 100, 76 Pac. 904; see also, People v. Wade, 118 Cal. 672, 50 Pac. 841; Smith v. State, 118 Ala. 117, 24 So. 55; State v. Abegglan, 103 Iowa 50, 72 N. W. 305; but compare, Keller v. State, 102 Ga. 506, 31 S. E. 92.

90 Evidence of a conspiracy on the part of the prosecutrix and her parents to inveigle the defendant into a marriage with her, and failing in that, to prosecute him, has also been held admissible. People v. Clark, 33 Mich. 112.