State v. Holter

1. Seduction — Evidence—Subsequent Intercourse. Testimony of prosecutrix, in a prosecution for seduction, to her acts of intercourse with defendant, subsequent to the alleged seduction, is admissible for purpose of corroboration. 2. Same — Evidence—Condition ofi Female. Evidence that .prosecutrix in seduction was enciente is admissible as proof of illicit intercourse, a fact necessary to be established; and, in connection with proof of previous chastity of .prosecutrix, it tends also to prove she had been seduced by some one. 3. Criminal Law — Evidence—Objections Below. Grounds of objection not presented to court below cannot be considered on appeal. 4. Criminal Law — Seduction—Evidence of Motive for Intercourse. The question to prosecutrix in seduction whether she would have permitted defendant to have intercourse except for his promise of marriage, is not objectionable as calling for a con-, elusion; and such testimony is competent. 5. Criminal Law — Seduction—Rebuttal Evidence — Alibi — Judicial Discretion. On trial for seduction, the state may, by way of rebuttal to defendant’s defense of an alibi involving the date of certain alleged intercourse between defendant and prosecutrix, introduce further evidence to show intercourse on such date; and such evidence, so admitted, is within judicial .discretion, even if it was properly evidence in chief. 6. Criminal Law — Instructions—Harmless Error. The jury having been clearly warranted in finding prosecu-trix was chaste prior to her alleged seduction, upon her un-contradicted testimony that she had had no> intercourse with 'any one prior thereto, any error in the charge that till the contrary is shown a woman is presumed chaste was harmless. Under Sec. 366,'Code Crim. Proc. (See. 7386, Comp. Laws,) .relating to corroboration of prosecutrix as to seduction under promise of marriage, that she was an unmarriad female of previous chaste character, and that there was an act of intercourse under such promise may be proved from her testimony alone; following- State v. King, 9 S. D.- 628. But there must be other and corroborating testimony to prove defendant was. the guilty party. 7. Criminal Law — Instructions—Invading Province .of Jury. The charge, in seduction, that it is sufficient to constitute corroborating evidence to connect defendant with the offense if the jury find the parties kept company with each other, and acted1 as lovers usually do, and other like circumstances, if any, is a correct instruction on the law applicable to the facts, and does not invade province of jury. Whiting, J., dissenting. 8. Criminal Law — Instructions—Request Covered by Charge. Even if it is doubtful whether there was sufficient evidence upon which to base a requested instruction, yet, assuming that the instruction stated the law correctly, no error was committed in refusing it, where such instruction was substantially embodied in those given. 9. Criminal Law — Instructions—Applicability to Evidence. A charge that no conviction of seduction could be had, though prosecutrix and defendant had intercourse, if it was by mutual consent in gratification of passion, and not in truth under promise of marriage, was as favorable as defendant was entitled to, he having denied any intercourse, and she having testified to intercourse with him and that she would have had-none but for his promise of marriage.

Appeal from Circuit Court, Charles Mix County. Hon. R. B. Tripp, Judge. . Defendant, Carl Hol-ter, was convicted of seduction; and from such judgment and from an order denying a new trial, he appeals. Evidence tending to prove acts of sexual intercourse, under promise of marriage, between defendant and the prosecuting witness, subsequent to the act charged in the. information -and testified to by the prosecuting witness, is inadmissible and should have been excluded. As the state had introduced evidence definitely fixing the date ■of the alleged seduction, the prosecuting witness should not have been permitted to testify to subsequent acts of sexual intercourse, each under a separate promise of marriage, as corroborative testimony, as the proof of such acts could have no such tendency. People -v. Clark, 33 Mich. 112; People v. Payne, 91 N. W. 729 (Mich.); Pope v. State, 34 So. 840 (Ala.) ; People v. Brown, 106 N. W. 149 (Mich.); People v. Williams, 65 Pac. 323 (Cal.) ; Cecil v. Territory, 82 Pac. 634 (Oída.) ; State v. Hilberg, 61 Pac. 215 (Utah); State v. Palmberg, 97 S. W. 566 (Mo.) ; Smith v. State, 73 S. W. 401 (Tex.); Henard -v. State, 79 S. W. 810 (Tex.). There could be but one seduction, and before a jury would be justified in returning a verdict of guilty, they should all agree as to the time of such alleged seduction. In this case the prosecuting witness having been permitted, against the obj ection' of defendant, to testify to four distinct acts of sexual intercourse, committed at different -times and each under a separate promise of marriage, and the court having instructed the jury that the lime the seduction took place was not material so long as it occurred, if at all, within three years before the filing of the information, there is no certainty that in finding the defendant guilty the jury all agreed as to the time when- the alleged seduction took place. The defendant testified that he was not .at the Hosford home on the evening of June 18, did not take Hazel Hosford riding, or have sexual intercourse with her at that time, and introduced the testimony of several witnesses strongly tending -to corroborate his testimony in this regard. It is quite probable that some of the jury -believed this testimony, but thought that defendant was-guilty of seduction on one of the subsequent dates testified to by Hazel Hosford. On this proposition also see: State v. Riggs, 25 S. D. 275. The only object in admitting evidence of pregnancy could' be that 'it would tend to corroborate the testimony of Hazel Hosford. The fact of pregnancy would show that there -had been illicit intercourse bet-ween Hazel Hosford and some man, but would not in any manner tend to connect the defendant with the commission of the offense or corroborate her testimony in that regard. While some of the courts have admitted such evidence for reasons that are unexplained and do not appeal’ in the decisions, so far as we have been able to ascertain it has been uniformly held that neither pregnancy nor the birth of- a child as the result of illicit intercourse, is corroborative of the -alleged seduction. State v. Dolan, 109 N. W. 609; State v. Kissock, 83 N. W. 724; State v. McGinn, 80 N. W. 1068; People, v. Boyce, 55 N. Y. 644. The prosecuting witness should not have been permitted to testify as to the. motive which induced her to consent to sexual intercourse. This ruling was erroneous and prejudicial to the defendant. Anderson v. State, 16 So. 109 (Ala.) ; Barnes v. State, 39 S. W. 684 (Tex.). The only evidence that was offered on the part of the state as tending to corroborate the prosecuting witness and in any manner connect the defendant with the commission of -the offense charged, is the evidence tending to show that “Plazel Plosford and Carl Plolter kept company with each other, and acted as lovers usually do, and other like circumstances.” Meager as was the evidence in ¡this regard, it was sufficient to be submitted by the court to the jury. In order to meet such evidence, it was not only competent but was absolutely essential for defendant to introduce the evidence called for by these questions so that the jury could get a fair and comprehensive idea of the relations, actions, and conduct of the parties, and of the entire situation, and thus be able to make an intelligent finding- as to whether or not the defendant and prosecuting witness “acted as lovers usually do.” • The court should have permitted these questions to be answered, and his refusal so to do is prejudicial error. Stinhouse v. State, 47 Ind. 17; State v. Brown, 53 N. W. 92 (la.); State v. Baldoser, 55 N. W. 97 (la.). After defendant had rested his case, the state offered the testimony of three other members of the Hosford family to- the effect that -they saw him at the Iijosford home on the evening of June 18, as had been previously testified to by Hazel Hosford, her mother and brother. Defendant objected to the testimony as not proper rebuttal; that the state in its main case' introduced the testimony of the prosecuting witness upon the same subject, in which she stated that -the defendant was at the Hosford house on the afternoon or early, evening of June 18th; that the state then introduced the testimony of two other witnesses tending to corroborate her in that regard; that having -introduced evidence upon that subject, both in main and as corroborating evidence, the state should have introduced and exhausted all the evidence it 'had on that subject before resting, and was not entitled at that time, the defense having- rested, to introduce additional testimony upon this subject. The defendant’s objections having been overruled, the witnesses testified to facts tending to show that defendant was at the Hosford house at the time claimed by the prosecuting witness. This evidence being merely cumulative and in no sense rebuttal testimony, should have been rejected by the court.. Code Criminal Procedure, Sec. 350; Underhill on Criminal Evidence, Sec. 280; Oldham v. Commonwealth, 58 S. W. 419 (Ky-) ; Williams v. Commonwealth, 14 S. W. 595 (Ky.); People v. Quick, 25 N. W. 302 (Mich.) ; State v. Hunsaker, 19 Pac. 605 (Ore.); State v. Minnick, 102 Pac. 605 (Ore.); Section 350, Code of Criminal Procedure. T11 the case at bar. 110 application was made by counsel for the state for permission to offer evidence upon their original case, their contention being that the evidence offered was rebuttal, and it was admitted by the court on that theory. State v. Hunsaker, supra. The court erred in instructing the jury as -to presumption of chastity of prosecutrix. In a criminal prosecution for seduction it cannot be presumed that the prosecuting witness was of previous chaste character. Under section 366 of the Penal Code, one of the essential elements of the offense of seduction is that the person seduced be "of previous chaste character;” the chastity of the female is not presumed, but must be alleged and proved the same as the other necessary elements of the offense. While there is some conflict of authority on this subject, the better and more logical view is that, although in ordinary cases there is an inference or presumption of the chastity of a woman, still, where such chastity is an essential element of a criminal offense, as in the case of seduction under statutes like ours, there can be no such presumption as against the presumption of the innocence of one accused of crime. As has been said: “There cannot, be two presumptions in a criminal case. The accused is presumed to be innocent until his guilt is established beyond a reasonable doubt.” People v. O’Brien, 62 Pac. 297 (Cal.); People v. Krusick, 28 Pac. 794 (Cal.); People v. Wallace, 42 Pac. 159 (Cal.)-; West v. -State, 1 Wis. 186; State v. Wenz, 42 N. W. 933 ’(Minn.); State v. Pockerby, 52 N. W. 958 (Minn.) ; State v. Preuss, 127 N. W. 438 (Minn.) ;■ Harvey v. Territory, 65 Pac. 837 (Okla.); Commonwealth v. Whittaker, 131 Mass. 224; Walton v. State, 75 S. W. 1 (Ark.)State v. McCaskey, 16 S. W. 511 (Mo.); Zabriskie v. State, 39 Am. Rep. 610 (N. J.); Oliver v. Commonwealth, 47 Am. Rep. 704 (Penn.); 25 Am. & Eng. Enc. of Raw 240. It will be observed that the statutes of Wisconsin and California, quoted in -the above cases, are in all essential respects identical with section 336, of our. Penal Code, which provides: “Every person who, under promise of marriage, seduces and has illicit connection wi-th any unmarried female of previous chaste character, is punishable,” etc. With reference to- the nature and extent of the corroborative evidence required, tending to connect the defendant -with the commission of the offense, the language of the trial court’s instruction was taken verbatim from the opinion of this court in State v. King, 9 S. D. 628. We have been unable to find any authority in support of the rule laid down in that case. In -the case of State v. Bollerman, 61 N. W. 183, this question was not in issue, and the language from the opinion of the court, quoted in State v. King as supporting such rule, is mere dictum and of no authoritative value. The Supreme Court of Iowa, in the later case of State v. Bauerkemper, 64 N. W. 609, held that the corroboration required by the Iowa statutes, must be both- as to the debauching and the use of seductive arts, which would include both the illicit intercourse and the promise of marriage. In the case at -bar, Hazel Hosford testified that' the defendant promised to marry her, and that, relying thereon, she permitted him to have -sexual intercourse with her. These were the onlv-acts of illicit intercourse and the only promise of marriage mentioned in the testimony, and this was practically the only evidence tending to connect the defendant with the commission of the offense. If the jury, under this instruction of the court, found the fact of sexual intercourse, under promise -of marriage, on the evidence of Hazel Hosford alone, then it is certain that they must have found the defendant guilty upon the same evidence, and without any corroboration. The instruction in effect permitted the jury to find the defendant guilty upon the uncorroborated evidence of the prosecuting witness, thereby nullifying the provisions of our statute requiring such corroboration. Under statutes similar to that of South Dakota, -it is uniformly held that a conviction cannot be had unless the evidence of the prosecuting witness is corroborated both as to the illicit intercourse and the promise of marriage. Harvey v. Territory, 65 Pac. 837 (Okla.) ; Wooley v. State, 96 S. W. 27 (Tex.); McCullar v. State, 61 Am. St. Rep. 847 (Tex.); State v. Bauer-kemper, 64 N. W. 609 (la.). Regarding the sufficiency of the corroborating evidence to connect the defendant with the commission of the offense, we contend the court erred in instructing the jury. In giving this instruction the court manifestly invaded the province of the juiy. It was for the jury and not the court to determine as to the sufficiency of the corroborating evidence tending to connect the defendant with the commission of the offense. State v. Bess, 81 N. W. 152 (la.); State v. Kissock, 83 N. W. 724.(Ia.); State v. Smith, 100N.W.40 (la.); State v. Waterman, 88 Pac. 1074 (Kan.); Tedford v. United States, 104 S. W. 608 (I. T.) ; Allen v. State, 50 So. 279 (Ala.); 25 Am. & Eng. Enc. of Daw (2d Ed.) 247. This instruction was excepted to by the defendant on the ground tliat it invaded the province of the jury, in directing it, that if “the defendant visited the prosecutrix as a suitor,” that fact was sufficient to connect the defendant with the offense charged. The supreme Court of Iowa sustained the exceptions and reversed the judgment on the sole ground that the giving of such instruction was prejudicial error. The court should have given the instruction requested by the defendant concerning whether defendant had illicit connection with the prosecuting witness and as to whether she consented to the same either wholly or in part through lust or passion, etc. If the testimony of Hazel' Hosford is to be believed, she yielded very readily to the request of defendant for sexual intercourse, and her version of the alleged seduction leaves a strong impression- upon the mind that her consent was given, partially at least, through lust and passion, and not solely on account of or in reliance upon any promise of marriage. Under statutes like ours, before a defendant can be convicted of seduction, it must be proven beyond, a reasonable doubt that the person seduced consented to sexual intercourse with the defendant upon the sole consideration of his promise to marry her. Nolen v. State, 88 S'. W. 242 (Tex.) ; People v. Krusick, 28 Pac. 794 (Cal.); People v. Clark, 33 Mich. 112; People v. De Fore, 64 Mich. 693; People v. Nelson, 153 N. Y. 90; State v. Ferguson, 12 S. E. 574, 577 (N. C.). Counsel for appellant in their brief have cited a number of cases which they claim support their contention, that subsequent acts of sexual intercourse between the complaining witness and appellant are inadmissible, and that it was error for the court to admit this testimony. An examination of these cases discloses the fact that they are all rape cases and therefore do not apply in this case. The elements of the offense in a rape case are vastly different from the elements of a seduction case. In cases of rape chastity is not an essential element. The law with reference 'to seduction cases is vastly different. One of the vital and paramount elements of this offense is previous chastity. Chastity as a legal -term used in connection with the offense of seduction means — '‘actual personal virtue.” Kenyon v. People, 26 N. Y. 203; 84 American Decisions 177. This being true there can be but one act and one offense of seduction against a woman, for after one act of sexual intercourse has taken place, the element of chastity is thereafter absent and subsequent acts would not be seduction. Ferguson v. State, 15 Southern 66 (Miss.); People v. Goodwin, 64 Pac. 561 (Cal.); State v. Robertson, 28 S. E. 59 (N. C.); People v. Castro, 65 Pac. 13 (Cal.) ; People v. Koller, 76 Pac. 500 (Cal.), and cases cited; State v. Stone, 85 Pac. 808 (Kans.) ; People v. Hendrickson, 19 N. W. 169; People v. Morris, 84 Pac. 463 (Cal..); Wigmore on Evidence, Sections 216, 398-400, and cases cited in supplement to that work at Section 3687. Tt is contended the court erred in permitting evidence of “subsequent acts of sexual intercourse.” There is no- statutory rule of evidence on this subject in this state, so the inquiry is, what is, or should be, the rule of the common law upon it? As showing their personal reliations ,it is now standard text law that “it is competent for the prosecution to show other acts of intercourse between the defendant and prosecutrix since the date of the act alleged,” 35 Cyc. 1356, 1353; 25 Am. & E. E. L. 236. The court did not err in -the rulings referred to on this subj ect. The reason assigned .by counsel, that the jury must agree “as to the time of such alleged seduction,” (Appellant's brief folio 288) is also without application, for there might be many acts of intercourse but only one of seduction under our statute and the facts presented in this case. As to the ruling of the court in permitting evidence to be introduced relative to the pregnancy of the complaining witness.: The law is well settled that this evidence is admissible in seduction cases to establish the fact that the complaining witness has had sexual intercourse with some one; and this fact taken in connection with proof of previous chastity would tend to prove the seduction, or at least certain necessary elements of the offense. In re People v. Goodwin, 64 Pac. 561 (Cal.); State v. Wycloff, 95 Iowa, 386, 64 N. W. 282; State v. Robertson, 121 N. C. 551, 28 S. E. 59; Armstrong v. People, 70 N. Y. 38; People v. Ran-god, 112 Cal. 669, 44 Pac. 1071; State v. Meister, 120 Pac. 406 (Oreg.); State v. Hughes, 76 N. W. 520 (la.); State v. Burns, 78 X. W. 681 (Mich.) ; Merrell v. State, 70 S. W. 979 (Texas); Wigmore on Evidence, Supp. Sec. 168. Appellant contends that the court committed error in permitting the complaining witness to answer the following questions: Q. “Miss Hosford calling your attention- to *tlie 18th day of June, 1911, or thereabouts, at the time you have testified to having an act of sexual intercourse, would you have permitted him to have had sexual intercourse with you at -that time except for this promise of marriage?” To this question the appellant’s counsel interposed the following objection: “Objected fo by the defendant as being leading, suggestive, incompetent, and irrelevant.” (App. Brief, folios 96-7). Counsel for appellant urge that the question called for a conclusion of the witness and that it was therefore error to permit -her to answer the same. The court will note from the above objection that the question was not objected to on any such ground. The appellant having failed to make this objection in the trial court,- is now precluded from raising the objection for •the first time in this'court on appeal. - On the other band the complaining witness certainly was competent to testify as to what influence and what conduct on the part of the appellant impelled her to consent to the first act of illicit intercourse. The court’s ruling is supported by the following authorities: 35 Cyc. 1351 (Treatise on “Seduction”), Note 24; Washington v. State, 52 S- E. 910 (Ga.); State v. Bennett, no N. W. 150 (la.) ; People v. Jensen,"33 N. W. 811 (Mich.); People v. Armstrong, 70 N. Y. 38; Wigmore on Evidence, Section 581; Supp. Wigmore, Sec. 1963, Note 4. The appellant by way of a defense in this case attempted to establish an- alibi. He testified that he was not present at the Hosford home on the evening of June 18, 1911. That being the date upon which it is claimed the alleged offense was committed. Pie also produced four additional witnesses who1 gave testimony tending to establish his defense of an alibi. The state had no notice that the defendant would claim that he was not present at the Hosford home on the evening of June 18, 1911, nor that he would rely upon an alibi as a defense in this case. Having attempted to establish such an' alibi the appellant raised a new issue which the state had a right to meet by rebuttal testimony. “As the burden of proving an alibi is on. the defendant evidence in support thereof may be rebutted.” 12 Cyc. 557, note 69 and 1912 Annotations; Eo Toon v.-Terr, 16 Hawaiian, 351; State, v. Watson, 72 N. W.r 283 (Iowa). “The state may introduce rebutting evidence to meet any pertinent issue.” Kastner v. State, 79 N. W. 713; People v. Mar Gin Suie, 103 Pac. 951 (Cal). “The admission of certain evidence in rebuttal which might properly have been given in chief is discretionary with the trial judge and is not error-.” People v. Tidwell, 12 Pac. 61 ((Utah) ; State v. Webb, 56 Pac. 159 (Utah) ; State v. Klein, 53 Pac. 364 (Wash.) ; State v. Hunter, 92 N. W. 872 (Iowa) ; State v. Selig-man, 103 N. W. 357 (Iowa); State v. Robbins, 80.N. W. 1061; Section 350 Code of Criminal Procedure. The court did not err in giving the instruction as to presumption of prosecuting witness’ chastity, but correctly stated the law on the subject and the portion of the charge given is supported by numerous decisions from eminent courts all over this country. There is some conflict of authority on thjs subject but we believe the weight of authority and most well considered cases establish the law to be as defined by the charge given in this case. In rape and seduction cases brought under statutes requiring previous chastity of the prosecutrix the previous chastity of the prosecutrix will be presumed until evidence to the contrary appears and the burden of proving unchastity is upon the defendant if he would avail himself of that defense. Kerr v. U. S. 104 S. W. 809; Crozier v. People, 1st Park. Cr. 457; Kenyon v. People, 26 N. Y. 204; McTyier v. State, 18 S. E. 140 (Ga.); State v. Drake, 105 N. W. 54 (la.); Baker v. Commonwealth, 20 S. E. 776 (Va.) ; State.v. Plemm, 48 N. W. 971 (la.); State v. Brown, 53 N. W. 92 (la.); Leedom v. State, 116 N. W. 496 (Neb.); Commonwealth v. Allen, 135 Pa. 483, 19 Atl. 957; Smith v. State, 118 Ala. 117, 24 So. 55; Woodard v. State, 5 Ga. App. 447, 63 S. E. 573 (Ga.); Ferguson v. State, 71 Miss. 805, 15 So. 66; State v. Thornton, 108 Mo. 640, 18, S. W. 841; State v. Kelley, 191 Mo. 680, 90 S. W, 834; People v. Clark, 33 Mich. 112; People v. Brewer, 27 Mich. 134; State v. Wells, 48 Iowa, 671; Bishop on Statutory Crimes, 3rd Ed., Section 648-649. The court in giving the instruction as to what are the facts which may be found from the testimony’ of prosecutrix alone, adopted verbatim .the language employed by this court in the decision in the case of State v. King, 9 S. D. 628. As said by the Supreme Court of Iowa under substantially the same statute: “It is true that the testimony of the prosecuting witness may be sufficient to shovv such an offense, and that the corroboration need only tend to connect the defendant with the offense.” State v. Bollerman, 61 N. W. 183; (Code Iowa 1873), a456o. / Section 366, Code of Criminal Procedure provides that in seduction cases.accused cannot be convicted upon the testimony of the injured person unless she is corroborated by other evidence tending to connect the defendant with the commission of the offense, An examination of the statutes of other states ' discloses the fact that they are in many cases different from the statute in our state. Sexual crimes are invariably crimes of secrecy and it is almost impossible in any case to obtain direct corroboration of the act of sexual intercourse and if the drastic rule contended for by counsel for appellant .were correct it would in effect nullify our penal statute relating to the offense of seduction. State v. Nash, 134 S. W. 717 (Texas). Assuming, but not conceding that the charge concerning prosecutrix and defendant keeping company and acting like lovers, is a charge 011 sufficiency of evidence, we think counsel’s contention that -the sufficiency of the evidence is without “the province” of the court is erroneous. In every case there is always the primary question of whether there is any evidence, and its legal sufficiency to justify a recovery, conviction, or corroboration. If this were not the law, applications to direct, advise or set aside verdicts would be idle. The weight of evidence, in the sense of its probative force, is for the jury, but the court can, and to aid the jury should charge what facts are sufficient for a recovery, conviction or corroboration. It is legally and logically contradictory to contend that an instruction, predicated upon certain facts, if found from the evidence, is erroneous, where the facts would unquestionably warrant a verdict. Our argument on assignment of error Number 2t, thus far has assumed that the particular portion of the court’s charge complained of, can and should be interpreted as charging the jury upon the weight of the evidence. We do not, however, think the charge should or can be so interpreted. The portion of the charge complained of, we know, was taken from the opinion of the Iowa Supreme Court of State v. Reinheimer, 80 N. W. 669, wherein the court by Deemer, J., uses the following language: “We have frequently held that the fact that the parties kept company, and acted as lovers usually do, and other like circumstances, are sufficient to constitute corroborating evidence necessary to connect the defendant with the offense.” In that case no complaint was made of the instruction of the court to the jury but it was contended there was no evidence on which to base the instructions. The case at bar is clearly distinguishable from all those referred to in opposing counsel’s brief except State v. Smith, which is a direct authority supporting the charge of the court in the case at bar when the charge is considered in its entirety. That the instruction in the case at bar complained of by appellant’s counsel, if interpreted as we contend it should be, stated a correct legal proposition is well settled by numerous authorities. State v. Kissock, supra; State v. MeClintic, 35 N.- W. 696; State v. Smith, supra; State v. Waterman, supra. The general rule is that if the whole charge clearly states the law so that the jury as men of ordinary intelligence can understand what is meant and apply it to the facts no prejudice is suffered by the defendant. The entire charge should be considered in construing any portion thereof. People v. Akey, 124 Pac. 718 (Cal.); People v. Weber, 86 Pac. 671 (Cal.); People v. Besold, 97 Pac. 871 (Cal.) ; People v. Argentos, 106 Pac. 65 (Cal.) ; State v. King, supra. We believe the instruction given by the court to the effect that there could be no conviction if the jury should find from the evidence that the illicit intercourse between prosecutrix and defendant, if any, was by mutual consent in gratification of passion and was not in truth under promise of marriage, was correct statement of the law. It was certainly as favorable as the defendant was entitled -to under the law. State v. Atteirberry, 52 Pac. 451 (Kans.) ; State v. Mclntire, 56 N. W. 4x9 (la.) ; State v. Carter, 36 Pac. 29 (Wash.) ; State v. O’Hare, 79 Pac. 39 (Wash.); Bradshaw v. Jones, notes, 76 Am. St. Rep. 672-673; Putnam v. State, 29 Tex. App. 454, 25 Am. St. Rep. 738; Peo v. De Fore, 64 Mich. 693, 8 Am. St. Rep. 863; Hinman v. State, 127 S. W. 221 (Texas).