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7. CRIMINAL LAW Ow829(1)-INSTRUCTIONS. together until October 12, 1917, when appel

There was no error in omitting matter from lant deserted her. She gave him no cause a requested instruction where the court express- whatever for deserting her. He went away ly charged as to such omitted matter in another to attend the funeral of his uncle, and told instruction.

prosecutrix he would be back that evening or 8. WITNESSES 255(9), 393(3)-MINUTES OF the next morning on the local. Everything TESTIMONY BEFORE GRAND 'JURY-ADMISSI- was perfectly pleasant between them. The BILITY.

prosecutrix did not see him any more until Under Kirby's Dig. 88 2195, 2196, minutes October, 1918. of the testimony before the grand jury cannot be The father of prosecutrix, R. L. Wilder, used as original evidence to show a witness' con- testified that the appellant worked for him tradictory statements made before the grand in the year of 1912. He was at witness' home jury, but can only be used to refresh the memory often during the years of 1915, 1916, and of members of the grand jury who might be call- 1917; visited his daughter once or twice a ed as witnesses on the issue.

week. Witness' daughter and appellant went 9. WITNESSES 379(9) IMPEACHMENT out to gatherings together. During appelTESTIMONY BEFORE GRAND JURY.

lant's visits to his daughter witness did not A state's witness may be impeached by show- think that any one else visited her. Witness ing that he made statements in his testimony further testified on direct examination that before the grand jury contradicting those made he went to Oklahoma to get the appellant to on the trial.

come back and marry his daughter as he had 10. WITNESSES 388(8) IMPEACHMENT agreed to do. Witness walked up to him FOUNDATION.

where he found him, and spoke to die To impeach a witness by showing contradic- usual, saying, "Hello, Joe,” and appel tory testimony before the grand jury a proper spoke to witness, and witness called bi : foundation should be laid by asking the witness one side and said, “Joe, I want to see you a sought to be impeached whether he had made the little bit; I come for you to go backim alleged statement before the grand jury.

cover up your wrongs." He said, "What i...! 11. CRIMINAL LAW E939(1) - New T

I done?” Witness replied, You know what NEWLY DISCOVERED EVIDENCE-DILIGENCE.

you have done; you know that you have A party asking for a new trial in a criminal ruined my girl.” He hesi case for newly discovered evidence should slow

d a little bit facts from which it will appear that he could and said, “Oh, I don't k

11:(toi lidn't tell not have ascertained or obtained the evidence by me.” Witness said, "No; isano suys she told reasonable diligence.

you and you agreed to marry her; that is

the way you started it." He : uid, “Yes; I Appeal from Circuit Court, Pulaski Coun- know I agreed to marry her. That is the ty; John W. Wade, Judge.

way I overcame her. We were to go and get Joe Lind was convicted of seduction, and married. I told her if she would come across he appeals. Affirmed.

and have intercourse with me that we were This appeal is from a judgment of convic- going to get married; that we were ungaged

to be married and it would be all right." tion of the crime of seduction. Eva Wilder, the prosecutrix, testified that she was 23 Witness said, “Now, come on back áid let's years of age; that she had kept company can't go now.” Witness said, “Yes, yoi: can

cover that up and be a man." He said, “I with the appellant off and on for two or three years up to the middle of March, 1917, go; come on back now and cover that all up when she had sexual intercourse with him. and no one will be the wiser;" and he agreed During the year preceding he had visited her to come back, and said, “Well, I know I done sometimes two or three times a week and wrong. I know I done it. I know I agreed to sometimes about once a month. Appellant marry her, and I will go back and marry

her." had other company during that year before the month of February, but not thereafter.

Witness and appellant walked back to the Appellant and the prosecutrix went together station to find out what time they could get about a month before the act of sexual inter- a train back to Little Rock. They could course. Appellant told the prosecutrix that it not get one that night, and appellant sain, was all right for them to have sexual inter- / "We will go over to Oklahoma City this ere course, and her love for him and his promise ning. I will go back and get ready. Come to marry her induced her to yield to his em- and go with me, and we will have dinner tobraces. The prosecutrix at the time was a gether, and we will go back this evening." virgin. The date fixed for their marriage Witness said, “Joe, I am so worn out; I was July 8, 1917. Appellant was with her don't feel like going. Go ahead and come that night. She told him of her condition, back over here." Appellant said, "I will be and he said he was not able to marry. He back between 1 and 2 o'clock.” He went went away to Oklahoma. Prosecutrix gave away to get his clothes, and witness never birth to a child. Appellant returned, and saw him any more until he got hold of him in they were married October 10, 1917, and lived the Mangum jail in October. Witness made

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

a trip after the appellant to try to get him to L. C. Wilder testified that he was a brother come baok and cover his wrongs. He made of the prosecutrix, and met his father and another trip to Oklahoma to try to locate brother and appellant at the Tenth Street him, and couldn't locate him, and witness station. He had received a telegram notifythen sent a wire to Mangum, Okl., and got ing him when they would arrive. They went him there. Witness was a deputy sheriff, and to Snodgress' office. The following converbrought him back after he was arrested sation occurred between the appellant and there.

witness: After they arrived here (in Little Rock),

"He asked me what did I think about it, and I witness and his two sons and appellant went said, 'Joe, now I am going to leave that to you. into Snodgress' office, and they fixed up there You have wronged the girl, and I said it is your what they would do. Appellant told it there place to straighten it up.' He said, 'I know I that he had agreed to marry her if she would have wronged the girl and I am willing to have intercourse with him. He told witness straighten it up. I promised her before we had and his two sons that he obtained intercourse this intercourse that I would marry her, and I with witness' daughter by promising to marry

am going to stick to it if there is any chance.' her. Witness had a pistol on all the time He said he did not have any means to get mar

ried. He asked me if I would get him some while he was in Snodgress' office.

clothes and give him some money to get married, 24. On cross-examination witness stated that and I told him I would, and I went and bought his first trip to Oklahoma was in August of him a suit of clothes and gave him money to buy 1917. He had learned the day before he left his certificate, and then gave him money to go to from the doctor of his daughter's condition; her home. After they were married they went imicnot talked with her. Witness met the to my house and stayed all night with me, and 318thgellant at El Reno, Okl., and told him he the next day they started for her home at is taip ruined his daughter, and he said, "Yes, Wilder. He voluntarily made those statements

to me. Nobody made any threats toward him. I have," and made a clean breast of it, and shortly after that he abandoned and left her." botold witness that she was overcome by his sypomise to msry her. Appellant did not 3sdome back with witness at that time. He ran i testified that the general reputation of

rreral witnesses on behalf of the appel9* away. Witness then went for him again prosecutrix for truth and morality was bad, · about the 18tnipf September. Witness went and also that her reputation for chastity was

before 5 : alf peace and got a warrant, bad, and they would not believe her on oath. charging wippinunt with the crime of seduc- The appellant testified admitting that he had tion. He took him from the jail at Mangum, had sexual intercourse with the prosecutrix, and brougg bim to Oklahoma City handcutf- but he denied that before such intercourse ed. There he took off the bandcuffs. Witness he had made her any promise to marry her. notified his son the day before he left Okla- He testified that he went to Oklahoma behoma City that he was going to leave with cause her father had threatened to kill him, appelant on a certain day. One of witness' and when her father came to Oklahoma he told sonsut on the train at Pinnacle and came him he would come back, but that he would on with witness and appellant to Little Rock, not marry his daughter upon any consideraWitness' other son met them at the Tenth tion. Appellant was arrested on a charge of Street station in Little Rock. Witness went seduction, was put in jail at Mangum, Okl., home and brought his daughter to Isgrig's of- and Mr. Wilder, prosecutrix's father, came fice, where the ceremony was performed. there for appellant. He further testified, Witness sent his son with the appellant to “From the time I left Oklahoma City or get the license. Appellant was under arrest Mangum jail he (Wilder) said I had to marwhen he was married. There was no prepa- ry his daughter or he was going to kill me; ration made by witness' family for the wed- said I had my choice.” He denied having ding.

any of the conversations testified to by the H. C. Wilder, a brother of the prosecutrix, witnesses for the state. He stated that he told testified that at. Snodgress' office, and while them he would marry her rather than be killappellant was under arrest, the following ed, but would not live with her. In regard conversation took place: He (appellant) said to the alleged desertion he testified: he would agree to marry her if she would treat him right, and she told him she would

"We went to Lem's house; stayed all night, treat him right if he would marry her, and and I went to Conway next morning. I told her

I was going home and would not be back. Made she would live with him and do all she could no promise to come back, and have not been for him, and he said he would marry her if back since." she treated him right, and which she promised to do, and he married her. Witness was In rebuttal the state introduced the testiasked if he or anybody else made threats to mony of several witnesses who testified that him, and answered, “No, sir.” He was fur- the reputation of the prosecutrix for morality ther asked, “Did he make his statements free was good. At the conclusion of the testimony ly and voluntarily?" and answered, “Yes.” the appellant, among other prayers for inWitness further testified that they were mar- structions, asked the court to direct the jury ried while the appellant was under arrest. to return a verdict of not guilty, which the

207 S.W.-4

duly excepted. The ruling of the courtant thing to arrive at her exact testimony at the

court refused, and to which the appellant,

time and to write it down. this and the other prayers for instructions R. C. Bright testified that he was clerk of will be commented upon in the opinion. the grand jury, and remembered the testimo

Appellant moved for a new trial, alleging, ny of prosecutrix, Eva Wilder. She stated among other grounds, that since the verdict that the defendant promised to marry her bewas rendered he had discovered that the fore she had intercourse with him, and that prosecutrix testified before the grand jury he had intercourse with her several times aft. that the appellant “promised to marry her er that. The question was made plain as to after they had had intercourse." To sustain whether the promise was made prior to the his motion on the ground of newly discovered intercourse. Witness did not know why the evidence, appellant attached to his motion deputy clerk of the grand jury did not write the original transcript of the testimony of the answer down differently than he had. the prosecutrix given before the grand jury, The grand jury expects a man to write corfrom which the above quotation is taken. rectly and he is supposed to do so. He is ex

Appellant also introduced Houston Gean, pected and supposed to take down important who testified that he was deputy clerk or sec- things. retary to the grand jury, whose duty it was

Gardner K. Oliphint and Rhoton & Helm, to write down and keep a record of the testimony of witnesses before the grand jury,

all of Little Rock, for appellant.

Jno. D. Arbuckle, Atty. Gen., and T. W. that is, to take a synopsis of their testimony. This was done to furnish the prosecuting at. Campbell, Asst. Atty. Gen., for the State. torney with the correct information of what was testified before the grand jury. The wit- WOOD, J. (after stating the facts as above). ness transcribed substantially all the testi. [1] 1. Under section 2044 of Kirby's Digest, mony that the prosecutrix gave before the one who is being prosecuted for seduction grand jury, and understood that she testified may have the prosecution suspended by marsubstantially as above quoted. Witness had rying the female alleged to have been seducno memory of the case except from the state-ed, and the prosecution shall not be revived ment taken down by him from which he re- unless the accused willfully and without legal freshed his memory. In taking down the tes- cause abandons such female. This statute timony witness did not undertake to put was for the benefit of the accused, and was down all the witness testified to. It hap- intended to give him an opportunity to volpened frequently that a witness made a state- untarily condone his offense by making repment that was not put down. Witness did aration as far as possible to the injured fenot know what questions were asked by mem- male whose confidence he had betrayed. But bers of the grand jury; did not undertake the statute has no application in a case where to put down questions or the answer to any | the defendant has submitted to a marriage particular question. Witness could not re- ceremony under duress. Therefore, if it be call what prosecutrix said, if anything, true, as appellant contends, that he was foro about the appellant promising to marry her ed to submit to the marriage ceremony, before the intercourse. She might have tes- then there was no marriage at all, and hence tified to that also. Witness did not under- no willful abandonment, and the statute, unstand it to be that way unless witness had der his own contention would have no apso put it down. It is possible that witness plication. might have misunderstood the prosecutrix. [2] Under the evidence adduced, the readWitness took her testimony in response to ing of the above statute was abstract, but it questions as near as he could get what she could not have prejudiced appellant's rights; said. What he put down was just a brief for if the ceremony was forced upon the apmemorandum of what witness remembered of pellant, then the prosecution should not have what she said. Witness thought that if the been suspended, and if the marriage ceremoprosecutrix had said before the grand jury ny was valid, then the undisputed testimony that the promise of marriage was made be- shows that appellant without any legal cause fore the intercourse, he would have put that willfully abandoned the prosecutrix. down at the time. Witness was of the im- [3, 4] 2. Appellant admitted the sexual inpression that he stated correctly or substan- tercourse, and further corroboration of the tially all that she said that was important. prosecutrix as to this was unnecessary. The Witness was in a hurry, and took the state testimony of the father of the prosecutrix as ment down in longhand, and it might have to the conversation he had with appellant on been that if prosecutrix stated, in a running the first trip to Oklahoma tended to prove question, that he had promised her before that the confession made by the appellant as the intercourse, witness might not have got to the promise of marriage was voluntary. it. The only thing witness knows about it is the confession having once been voluntarily just what that record shows. Witness would made, the fact that appellant afterwards rehave to stand on that, and did not remember peated the confession under circumstances whether the intercourse was before or after which tended to prove that he was under the promise. Witness had no other object duress did not destroy or lessen the effect of


his previous voluntary confession, and the cused, that he was entitled to an acquittal; testimony of the Wilders as to what took that the burden rested upon the state to place in and on the way to Snodgress' office prove the guilt of the accused beyond a reaconcerning the confession as to the promise of sonable doubt. The court correctly declared marriage was in no manner prejudicial to the law on reasonable doubt, credibility of the appellant. The prosecutrix, under the witnesses, and the burden of proof. Also facts set forth in the statement, was corrob- correctly submitted to the jury the issue as orated by competent testimony as to the to whether the appellant confessed to the promise of marriage. See Oakes v. State, 205 crime charged, and as to whether these conS. W. 305; Patrick v. State, 204 S. W. 852. fessions were freely and voluntarily made,

[5,6] The appellant could not have been and instructed them that unless they were so convicted upon his confession alone. Section made the jury could not consider them. 2385, Kirby's Digest; Melton v. State, 43 [7] The appellant, among other instrucArk. 367; Hubbard v. State, 77 Ark. 126, tions, prayed the court to instruct the jury 91 S. W. 11; Greenwood v. State, 107 Ark. that before the appellant could be convicted 581, 156 S. W. 427; McLemore v. State, 111 they must find that he obtained carnal knowlArk. 457, 164 S. W. 119. Nor could he have edge of the prosecutrix solely and alone by been convicted alone upon the uncorroborated virtue of the promise of marriage. The court testimony of the prosecutrix. Section 2043, struck out the words "solely" and "alone." Kirby's Digest.

but instructed the jury, as before stated, that But there is nothing in these statutes and before the appellant could be convicted the decisions which forbids conviction a testimony must show that he had sexual incharge of seduction upon the testimony of tercourse with the prosecutrix by virtue of the prosecutrix, when corroborated by the a promise of marriage, and the court further confessions made by the accused out of court. instructed the jury at the request of the apOn the contrary, while the proof of the cor- pellant as follows: pus delicti by the testimony of the prosecu

If you find from the testimony that the prosetrix alone would not be sufficient to convict, cutrix yielded her virtue to the defendant beset when her testimony establishing the cor. cause of any other reason than an express or pus delicti is corroborated by the confessions feigned promise of marriage made to her by him, of the accused out of court the testimony of you should find the defendant not guilty." the two combined is sufficient to convict, there being no statutory or common-law rule The appellant contends that because there to the contrary. The statutes referred to do was testimony tending to prove that the not prohibit the introduction of the testimony prosecutrix's reputation for morality was of the prosecutrix, and of the introduction bad, and, because she testified that she conof the testimony showing the confessions of sented to the act of sexual intercourse on acthe accused out of court, nor the considera- count of his promise to marry her and her tion of same by the jury. We know of no love for him, that the court erred in striking rule of law which prohibits a conviction upon from appellant's prayer the words "solely.” the testimony of the prosecutrix when cor- and "alone"; that the striking of these roborated by the confessions out of court of words prevented the jury from considering the accused. , See Hubbard v. State, supra, whether or not the intercourse on the part of 77 Ark. 126, syl. 2, 91 S. W. 11; Harshaw v. the prosecutrix was prompted by her lustful State, 94 Ark. 343, syl, 2, 127 S. W. 745 ; Mei- passion rather than by the promise of marsenheimer v. State, 73 Ark. 407, 84 S. W. 494 ; riage. In Taylor v. State, 113 Ark. 525, 169 McLemore v. State, supra. The court did not S. W. 343, we used the following language err in refusing appellant's prayers Nos. 22 concerning our seduction statute: and 22%, for instruction to the contrary. "But this statute can only be invoked by the

3. The court instructed the jury in con- female who to the very time of her fall had held formity with the law as announced in many her virtue, so to speak, as 'the immediate jewel of our previous decisions, in substance, that, of her soul,' and who was only induced to surin order to convict the defendant, the jury render it through the promise of the man whom must find from the evidence beyond a reason- she trusted to marry her, and solely from a deable doubt that the accused obtained carnal who yields her virtue for sexual pleasure, and

sire to have him keep that promise. The woman knowledge of the prosecutrix by virtue of an

uses the promise of marriage only as a cloak or express promise of marriage, and that the subterfuge to hide her disgrace, is not within the testimony of the prosecutrix must be cor- pale of the protection of this particular statute." roborated both as to the promise of marriage and the act of sexual intercourse; that the The court did not err in its ruling. The previous want of chastity was matter to be jury were expressly told that if the prosecuset up in defense, and that the burden was trix yielded her virtue “because of any other upon the defendant to prove it by a pre reason than an express or feigned promise of ponderance of the evidence; that if the evi- marriage made to her by him” they should dence on that issue, in connection with other acquit the defendant. evidence, raised a reasonable doubt in the The appellant presented 30 prayers for inminds of the jury as to the guilt of the ac- / structions, and it would unduly prolong this opinion to discuss his exceptions to the rul- the testimony in time to produce it at the ing of the court in passing upon these pray-trial, but should also show facts from which ers. Some were given as asked, others were it will appear that he could not have ascer. modined and given, and others were refus- tained or obtained it by reasonable diligence. ed. The charge of the court, taken as a McDonald v. Daniel, 103 Ark. 589, 148 S. W. whole, was exceptionally free from error. It 271 ; Ary v. State, 104 Ark. 212, 148 S. W. covered fully every phase of the case as de- 1032; and other cases collated in Crawford's veloped by the testimony adduced.

Digest, 3817, 3818, $ 42. [8-10] 4. The court did not err in refusing There are no reversible errors in the rec a new trial on the alleged ground of newly ord, and the judgment is therefore affirmed. 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. Section 2195, 2196, ST. FRANCIS COUNTY ROAD IMPROVEof Kirby's Digest. The prosecutrix might

MENT DIST. NO. 2 v. SOUTHERN have been impeached by showing that she

TRUST CO. (No. 2.) made statements in her testimony before the grand jury contradicting those she made on (Supreme Court of Arkansas. Nov. 25, 1918.) trial, but the minutes before the grand jury HIGHWAYS 90 ACTION FOR BREACH OF could not be used for such purpose. They

SALES CONTRACT-EVIDENCE-APPROVAL OF could only be used to refresh the memory BOND ISSUE. of members of the grand jury who might have

In a suit wherein a road improvement disbeen called as witnesses on the issue as to trict claimed damages from a brokerage firm for whether she had made contradictory state-breach of a contract for the purchase of road ments. The testimony of witness Gean would improvement bonds, evidence held to show that have been competent, but no proper founda- counsel upon whose approval of the bonds detion was laid for the introduction of such fendants agreed to purchase them had actually testimony by asking the prosecutrix whether approved such bonds, making defendants liable she had made the alleged statement before

for breach of contract. the grand jury.

Appeal from Pulaski Chancery Court; [11] The cases of Bussey v. State, 69 Ark. 545, 64 S. W. 268, and Myers v. State, 111

John E. Martineau, Chancellor. Ark, 399, 163 S. W. 1177, L. R. A. 1915C, 302, Interpleader by the Southern Trust ComAnn. Cas. 1916A, 933, upon which learned pany against the St. Francis County Road counsel for appellant rely, are not applica- Improvement District No. 2 and Cravens & ble for the reason that in those cases the Pierce to determine the proper payee of a prosecutrix, having testified to a certain state check deposited to secure a contract, with of facts at the trial, afterwards made an affi- cross-complaint by defendant Improvement

District. davit to the effect that her testimony given

From a decree dismissing the at the tiral was untrue. Here the prosecu- cross-complaint, and directing payment of trix has made no such affidavit and no such the amount of the check to Cravens & Pierce, issue is raised. Moreover, the appellant does the Improvement District appeals. Reversed not set up in his motion for a new trial, on

and remanded, with directions. the ground of newly discovered evidence, Rose, Hemingway, Cantrell & Loughborfacts showing that he had used due dili- ough, of Little Rock, and S. S. Hargraves, gence. The indictment was returned in Feb- of Forrest City, for appellant. ruary, and the trial was not had until June R. M. Mann and Carmichael & Brooks, all thereafter. The appellant does not set up of Little Rock, for appellee. and prove that he could not have discovered this evidence as well soon after the indict

McCULLOCH, C. J. Appellant is a road ment was returned against him as during improvement district organized under the the few days that intervened the trial and laws of the state with authority to issue the filing of the motion. The memorandum bonds for the purpose of raising funds to was on file. The appellant must have an

use in the construction of the improvement, ticipated that the prosecutrix had testified and it entered into a written contract with before the grand jury, and would testify on Cravens & Pierce, appellees, dated July 30, the trial to facts that would tend to support 1917, for the sale of the said bonds, aggrethe charge, and due diligence exacted of him gating $155,250, in denominations of $1,000 that he should make reasonable inquiry to each. Cravens & Pierce were brokers, and discover any facts in existence that would contracted for the purchase of the bonds tend to break down her testimony. The par- for resale. The stipulated price of the bonds ty asking for a new trial for newly discov- was on a basis of 1034 for bonds bearing ered evidence should not only state in his mo- 6 per cent. interest payable semiannually, tion that he did not know of the existence of and the clause in the contract which controls

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