Burrow v. State, 166 Ark. 138 (1924)

Nov. 3, 1924 · Arkansas Supreme Court

166 Ark. 138

Burrow v. State.

Opinion delivered November 3, 1924.

1. Seduction — indictment—felonious intent. — An indictment for seduction which charges the crime in the language of Crawford &. Moses’ Dig., § 2414, sufficiently charges the offense without alleging a felonious intent, since seduction was not a felony at common law, and the statute does not make a felonious intent an essential part of the crime.

2. Seduction — evidence of unchastity. — Exclusion of letters of the prosecutrix to accused, written after he had sexual intercourse with her, and tending to show that she was unchaste prior to the alleged seduction,, held reversible error. •

Appeal from Randolph Circuit Court; John G. Ashley, Judge;

reversed.

Schoonover & Jackson and Smith & Blackford, for ■appellant. ■ ’ .

J. S'. Utley, Attorney General, and John L. Garter, Assistant, for appellee."

' ' Humphreys, J.

Appellant was indicted, tried and convicted in the circuit' court of Randolph County for the crime of seduction, and'adjudged'to serve a term of two years'in the State Penitentiary and to pay a fine of $500 as punishment therefdr: From the judgment of conviction an appeal has been duly prosecuted to this court.

■' Appellant was indicted under § 2414"of Crawford -■& Moses’ Digest, and the indictment is substantially in "the language of the statute. ' '

One assignment of error insisted upon by appellant for a reversal- of the judgment is that the indictment . was fatally defective because it omitted to allege that the crime was committed with a felonious intent. Seduction was not a felony at common law, where a felonious intent was an essential' to the crime. 35 Cyc., p. 1329. T'he statute does not make a felonious intent an essential part of the crime, so the indictment sufficiently charged the ■offense without alleging a felonious intent. State v. Eldridge, 12 Ark. 608; State v. Seawood, 123 Ark. 565.

The next assignment of error insisted upon by' appellant for a reversal of the judgment was the refusal of the court to admit in evidence twenty-four letters written by the prosecuting witness to appellant, in the fall after he had sexual intercourse with her in the spring and .summer. These letters tended to show that she was unchaste previous to the alleged seduction, and not merely that her thoughts lasciviously inclined toward appellant, who was charged- with seducing her: ■ The letters should not therefore have been excluded, under the rule of evidence announced in the case of Wilhite v. State, 84 Ark. 67. In that case the letter was properly excluded on the ground that the contents thereof indicated that the prosecuting witness was bent upón sexual intercourse with the defendant, and the court said that it did not lie in his mouth, after he had seduced, her, to show her lascivious inclination toward him.

Again, the letters were clearly admissible'as. affecting the credibility of the prosecuting witness.

There are other ■ assignments of error which it. js unnecessary to discuss, as they will not likely recur on the retrial of the case.

On account of the error indicated the judgment'.!? reversed, and the cause is remanded for a new trial.