Willhite v. State

• Citation: 104 S.W. 531
• Parties: WILLHITE v. STATE.
• Decision Date: 03 July 1907
• Court: Arkansas Supreme Court

Page 531

104 S.W. 531

WILLHITE v. STATE.

Supreme Court of Arkansas.

July 3, 1907.

Appeal from Circuit Court, Polk County; James S. Steel, Judge.

Pool Willhite was convicted of seduction, and he appeals. Affirmed.

Hal L. Norwood, Pole McPhetridge, and Vaughan & Vaughan, for appellant. W. F. Kirby, Atty. Gen., and Danl. Taylor, Asst. Atty. Gen., for the State.

HILL, C. J.

Pool Willhite was indicted for seduction, and was convicted and sentenced to pay a fine of $1 and to serve 18 months in the penitentiary, and has appealed.

1. The indictment alleges in apt terms the seduction of Cordelia Bernard, and that she was of previous chaste character. It is admitted that it is not necessary to allege that she was of previous chaste character; yet the state, having made this allegation, it is insisted, must prove it. The necessity of allegation and proof of previous chaste character in seductions was considered in Caldwell v. State, 73 Ark. 139, 83 S. W. 929, 108 Am. St. Rep. 28, and it was therein demonstrated that it is not necessary either to charge or prove that the seduced female as of previous chaste character in order for the state to make out a case. The Code provides that "neither presumptions of law nor matters of which judicial notice is taken need be stated in an indictment." Kirby's Dig. § 2240. The fact that the prosecuting attorney has incorporated into the indictment a presumption of law does not render it necessary to prove the presumption. Chastity, like sanity, is presumed; and it is no more necessary to allege chastity in seduction than it is to allege sanity in any indictment. In no event is it ever necessary for the state to prove either of these matters until evidence to the contrary is introduced by the defendant.

2. The defendant on the witness stand admitted the promise of marriage and the sexual intercourse with the prosecuting witness, and said that he had made the promise of marriage in good faith, and intended to fulfill it, but that he had not done so by reason of becoming convinced of the want of chastity of his affianced. The court gave this instruction "The defendant having admitted the promise of marriage and the sexual intercourse, no other corroboration of the witness, Cordelia Bernard, is necessary to establish these facts." And it is insisted that this is erroneous. It is the right and duty of the trial court to instruct the jury upon the law governing the matters in issue, and to eliminate all matters which have been admitted and which are established beyond dispute, thus drawing the attention of the jury to the real issue of the case. The law requires corroboration of the female to the promise of marriage, and the sexual intercourse. Kirby's Dig. § 2043; Rucker v. State, 77 Ark. 23, 90 S. W. 151. This is a safeguard of the defendant. If he admits essential facts which require corroboration, the reason of the rule is more than satisfied. The only disputed matter, and hence the real and only issue of fact in this case, was the charge of the defendant that Cordelia Bernard was not of chaste character, and that he was thereby excused from fulfilling his marriage engagement with her. Hence the court was right in narrowing the case to the only issue in it.

3. The court refused to give this instruction: "You are instructed that, before you can convict the defendant, you must believe beyond a reasonable doubt that no one has ever had sexual intercourse with her before the defendant did, and if you have any doubt upon this point, you will resolve the doubt in favor of the defendant, and acquit him." But gave the following: "The prosecuting witness is presumed to have been virtuous, but this presumption can be overcome by evidence, and if the evidence introduced by the defendant raises in your minds a reasonable doubt as to whether or not the prosecuting witness was chaste and virtuous previous to the time the defendant had intercourse with her, you will find the defendant not guilty." This covers every point in the refused instruction. For this reason there could be no error in refusing the former instruction. However, there is an error in the former instruction which rendered it proper for the court to refuse it. The jury are therein told that, before they could convict, they must believe beyond a reasonable doubt that no one had ever had sexual intercourse with the prosecuting witness before the defendant. In Caldwell v. State, 73 Ark. 139, 83 S. W. 929, 108 Am. St. Rep. 28, the...