On Rehearing.
[En Banc. April 5, 1921.]
Parker, C. J.From a painstaking review of the record in this case, after hearing the argument of counsel for the respective parties upon a rehearing En Banc, we feel constrained to hold that the judgment of conviction rendered against appellant must be affirmed; as was concluded by the majority of the judges upon the first hearing of the cause in Department Two of this court.
We have taken particular pains to critically read all of the evidence as found in the statement of facts, rather than as found in abridged form in the abstract thereof prepared by counsel, with a view of determ*696ining- whether or not the question of appellant’s guilt should have beep taken from the jury and decided by the court in his favor as a matter of law; that being the question to which the argument of his counsel was for the most part directed upon the rehearing. "We think there need be but little said here in addition to what is said in the majority department opinion on that question. We note that the argument of counsel for appellant, as does our brother Mount’s opinion dissenting from the conclusion of the majority department opinion, seems to proceed upon the assumption that the prosecution relied practically wholly upon the testimony of Euth Garrison. If we could so view this record, it is possible we could come to our brother Mount’s conclusion; but we cannot so view the record. The testimony of the proprietor of the hotel at Okanogan was, in substance, that appellant and Euth Garrison lived for some time at his hotel, to all outward appearances as man and wife, both occupying the same room. Two other witnesses testified to admissions made by appellant that sexual intercourse took place between him and Euth Garrison at that hotel at about the time charged, as will appear in testimony presently to be quoted. It therefore seems to us that there was testimony tending strongly to support the fact of sexual intercourse between them at the time charged, wholly independent of Euth Garrison’s testimony. Touching the question of appellant’s efforts to have Miss Garrison submit to intercourse with him at Seattle before he went to Okanogan, we have the testimony of two witnesses—a deputy prosecuting attorney of King county and an officer of the city of Seattle—as to what appellant said to them, touching that question, in an interview they had with him about March 19th, upon his return to Seattle from Okanogan. The testimony *697of the deputy prosecuting attorney touching that interview was in part as follows:
“A. We started out by asking Storrs what he knew about the murder of his wife. He said,‘Nothing.’ He said that he knew nothing. He said that he hadn’t heard of her death even or how she had come to her death until he reached Wenatchee, when he read it in the paper. We asked him then when his relations had first been intimate with the Garrison girl, specifically when he had first had intercourse with her. He said that his first act of intercourse with her was in Okanogan. We said to him that he had been calling on the girl almost nightly at her apartment. He said yes, that was true. We said, ‘You stayed there sometimes as late as two o’clock in the morning?’ He said, ‘Yes, that is true.’ We said, ‘You attempted repeatedly to have intercourse with her?’ He said, ‘Yes.’ We said then, ‘Don’t you think it is an unreasonable sounding story that you never did succeed in having intercourse with the girl until she came to.Okanogan?’ He said, ‘Yes, I know it doesn’t sound like the truth, but it is the God’s truth. ’ I believe those are the exact language he used in that regard. He said that he had received a letter one morning while he was here in Okanogan from her, stating that she would be here on the night train, and that there was nothing left to do but to go down to the train to meet her; that he had taken her to the Bureau Hotel and registered her as Mrs. Storrs; that she had occupied room 17, and he was living in room 25; that she occupied that room for a few days before she moved into his room, but she had stayed here about a week, a few days more or less, and then had left; that the next time he saw her, he was out at the moving picture show one evening, and after the show he went back to the hotel, and when he went to his room at the hotel he found her in bed there.”
The city officer, who was then present and participated in the interview, in his testimony corroborates the above-quoted portion of the deputy prosecuting *698attorney’s testimony. The testimony of these two witnesses, it seems to us, lends strong support to the view that, in the accomplishment of the final act of intercourse at Okanogan, she was seduced by appellant, that is, that she did not yield to him merely because of her desire to gratify her physical sexual passions^ The act punishable by our statute (Rem. Code, § 2441) is to “seduce and have sexual intercourse with . . .” The decisions seem not to furnish any well-defined general rule as to what the word “seduction” means when used as in this statute. When we exclude the thought of a mere gratification of physical sexual passions and the selling^ by a woman of her body to a man, practically all other inducements which cause her to yield seem to be properly left to the jury to decide, as to their sufficiency to constitute seduction. We are impressed with the observation made by Justice Thomas, speaking for the court of appeals of Alabama, in Smith v. State, 13 Ala. App. 399, 69 South. 402, as follows:
“What temptation, deception, arts, or flattery may be sufficient in one case to overcome the will of the woman and cause her to surrender her virtue may not be sufficient in another case—depending, as it does, upon the relative moral and intellectual strength of the man and the woman, their respective positions in society, the vantage ground of the man, the weakness of the woman, her necessities, and a variety of conditions and circumstances peculiar to each case, which must be judged of by the jury. And therefore, when any temptation, deception, arts, or flattery at all are shown, it must be left to the jury to say whether it or they were sufficient, and whether it or they did in fact induce the intercourse, or whether the intercourse was the result of merely a desire on the part of the woman to gratify her sexual passions or deliberately to sell herself for a consideration, uninfluenced and not super-induced by the arts and wiles of the man.”
*699Viewing the whole history of this love affair between these two people from the time of its inception to the final consummation of their act of sexual intercourse here in question, we cannot escape the conclusion that it was for the jury, and not for the court, as a matter of law, to say whether or not Ruth Garrison yielded her body to appellant because of his persuasion, wiles and arts practiced upon her, rather than as the result of her mere desire to satisfy her physical sexual passions. The jury could well believe that it was the former and not the latter that caused her to finally yield.
We have reviewed and re-examined the questions of law incident to appellant’s motion for a new trial, and have become convinced that they have all been properly disposed of by the majority opinion rendered by Department Two.
The judgment is affirmed.
Fullerton, Holcomb, Tolman, and Bridges, JJ., concur.