The defendant was charged by indictment with seduction. The indictment was in Code form, and was sufficient; the demurrers thereto were properly overruled. Wilson v. State, 73 Ala. 527; Smith v. State, 107 Ala. 139, 18 So. 306.
While the indictment in this case charged in the alternative that the alleged seduction complained of was "by means of temptation, *Page 283 deception, arts, flattery, or a promise of marriage," and while a conviction upon proper evidence could be had under either or all of said charges, it is clear that the state could only rely for a conviction here upon the charge, of "a promise of marriage," for the testimony of the prosecutrix eliminates each and every alternative charge except the charge of a promise of marriage; her testimony being:
"He told me if I would yield to what he asked he would marry me; and he took me on out there below the depot and we went to doing intercourse. I yielded. That was March 1, 1919, and he said that he would go to West Point, Ga., and marry me."
There is nothing in the testimony of the prosecutrix showing or tending or show that the sexual intercourse with her was accomplished by means of temptation on the part of defendant, or that she yielded as the result of deception, arts, or flattery; she confines her testimony solely upon the proposition, as above stated:
"He promised to marry, * * * and we went to doing intercourse. I yielded."
The statute under which this defendant was tried and convicted expressly provides, as a condition precedent, that no conviction shall be had under this section on the uncorroborated testimony of the woman upon whom the seduction is charged. The charge against this defendant being in effect restricted by the testimony of the prosecutrix to a charge that by means of a promise of marriage he seduced Sybil Hodnett, the question is therefore presented. Was there adduced upon the trial of this case evidence corroborative of the prosecutrix as to a promise of marriage made to her by this defendant? This is the important question presented, and the alternative charges of "temptation, deception, arts, or flattery" are not involved. In other words, under the testimony of the injured party, the prosecutrix, he either accomplished the alleged seduction by means of a promise of marriage or else there could be no conviction.
There was no error in overruling the objections to the testimony of David Hodnett, brother of the prosecutrix. While there is nothing contained in his testimony corroborative of his sister's statement as to a promise of marriage, his testimony was relevant and admissible in order to show the opportunity of defendant to have sexual intercourse with her, this being a material ingredient of the offense; this witness merely testifying "that he remembered the defendant and his sister, Sybil, going off together in an automobile on or about the 1st of March, 1919, and that they were gone about an hour." This was the same time and place as testified to by the prosecutrix.
Nor was there error in the rulings of the court in allowing the witness Mrs. Hodnett, who had a baby in her arms, to testify that the baby was the child of her daughter, Sybil Hodnett, and that it was born December 3, 1919. While this testimony in no manner could be construed as being corroborative of the prosecutrix as to a promise of marriage to her by the defendant, yet it is admissible as being corroborative of the fact of her having had sexual intercourse; a material ingredient of the offense charged. Whatley v. State,144 Ala. 68, 74, 39 So. 1014; Tarver v. State, 17 Ala. App. 424,85 So. 855.
In cases of seduction letters from the accused to prosecutrix containing incriminating statements, when properly identified, are admissible in evidence against him. Bracken v. State,111 Ala. 68, 20 So. 636, 56 Am. St. Rep. 23; Weaver v. State,142 Ala. 33, 39 So. 341. Whatley v. State, 144 Ala. 68, 75,39 So. 1014. The several letters introduced upon this trial purporting to have been sent by defendant to the prosecutrix, and identified by her as being in the handwriting of the defendant, with which she was familiar, have been examined, and, as there is no statement in any of said letters touching the question of a promise of marriage by him to prosecutrix, nor other statement corroborative of her testimony on any material matter, the nature of which would authorize the jury to believe that her testimony is worthy of belief, we are of the opinion that they were therefore immaterial to the issues involved upon this trial, and as a consequence should not have been admitted in evidence over the objection of defendant.
We have searched the record carefully for any evidence the tendency of which would be to corroborate the testimony of the prosecutrix on the question of a promise of marriage, or on any material point the extent of which or the tendency thereof could lead the jury to the belief that her testimony was worthy of belief; and that this is the well-settled rule is beyond all question, and before a conviction of this offense can be had there must be some evidence to this effect. There is no such testimony; hence the terms of the statute (section 7776, Code 1907) have not been met. There was no corroboration of her testimony on these important and material questions, and, this being true, the defendant was entitled to the affirmative charge requested in writing and refused by the court.
The refusal of this charge was error.
Reversed and remanded.
MERRITT, J., not sitting.