The opinion of the court was delivered by
Scott, J.— The defendant was convicted of seduction, and has appealed.
It is contended that the proof was insufficient to show any seduction, in that there was no evidence of any promise, or seductive influences, on the part of the defendant, and that the verdict was contrary to the weight of the evidence.
There was testimony to show a number of attempts by the defendant to have sexual intercourse with the prosecuting witness, beginning when she was but twelve years of age. Such attempts were carried to the extent of a contact of the sexual organs, but it appears by the testimony of the complaining witness that there was no actual penetration until after several such attempts had been made. . She was unable to name the first time when the defendant did have complete sexual intercourse with her, but her testimony, if true, shows that he did have intercourse with her a great many. times, extending over a period of two years, or more. Her testimony was unsatisfactory in many respects, as it appears by the record, but its truthfulness was a matter for the jury to determine. She was but fifteen years old at the time of the trial, and *274had recently given birtli to a child. She was corroborated to some extent by other witnesses. The defendant was a married man, twenty-five years of age. He denied having had any sexual intercourse with the complainant, or of having attempted to have any. As to the inducements held out, the testimony was meager. There was testimony that he told her that he would not hurt her, and would not do her any harm, that it was not wrong to have sexual intercourse, and told her not to tell any one; that he kissed and fondled her and felt of her person. According to the complainant’s testimony, these representations were made, and this conduct occurred, upon a number of occasions when he attempted to have intercourse with her, and also thereafter when he succeeded.
We would not feel justified, under all the circumstances proven, in interfering with the conviction upon the ground of the improbability of the truthfulness of her testimony, and we think the inducements held out, considering her tender age, were sufficient to constitute the offense seduction.
In considering this case, we cannot allow the condition of appellant’s briefs and the record to pass unnoticed. A multitude of questions are argued which seem to have no foundation in the record, and for that reason some which may arise on a new trial, and which would otherwise be noticed, must be passed. Many of such points purport to be based upon parts of the record the pages whereof are not indicated in his brief, thus necessitating searches through the entire transcript by the court, and often resulting in a failure to find any such. Had this been fully understood by the court before the argument, the case would not have been heard, and severe terms would most likely have been imposed upon counsel before an amendment thereof would have been permitted to get the case in a condition to be heard.
*275One of the points urged by appellant as error has its foundation in a motion which he made for a continuance of the trial upon the ground of the absence of a material witness. It is contended by appellant that the prosecuting attorney, to avoid a continuance, admitted that certain testimony set forth in the affidavit would be given by such witness if present, and that the court allowed certain parts of it to be considered as given. After a diligent search we have failed to find any such admission or action by the court set forth in the record. However, counsel for the respondent in his brief practically admits that such action was had in the premises, and this view is strengthened by the fact that testimony was introduced by the state to impeach the witness in question, which would, of course, have been entirely irrelevant and inadmissible if the testimony of such witness was not considered in the case. In view of this, and of the fact that it is a criminal case, and that upon the oral argument the case was treated as though such testimony had been given, we shall consider it as of record.
The witness referred to was one Mrs. Franz, and it appears by the affidavit in question that she would testify that the prosecuting witness told her after the seduction complained of, in substance, that she had had sexual intercourse with a number of men running through a period of years, and undertook to name all of the men with whom she had been so intimate, and that the defendant was not one of them. At the close of the case both for the state and the defendant, the court allowed the prosecuting attorney to call one Dr. Whitney, and allowed him to testify that he had a conversation with Mrs. Franz the Sunday before, during which she told him that she had never talked with the prosecutrix about the case, etc. This evidence was offered for the purpose of impeaching the credibility of Mrs. Franz, and would have been inadmissible for any other purpose.
We are of the opinion that this was error. ' While the *276state, under our statute, § 338 of the Code of Procedure, relating to continuances, would probably have been permitted to contradict the truthfulness of the testimony which it had admitted would be given by an absent witness in order to avoid a continuance of the trial, yet, in our opinion, it would not be authorized to undertake to impeach said witness, at least under the circumstances of this case, and in the way in which she was sought to be impeached. It is not contended that there was anything in the agreement admitting that this witness would so testify, or in the action of the court in admitting the testimony, to the effect that such impeaching testimony might be given, or that the attention of counsel for the defendant was in any wise called to the fact that an impeachment of her would be attempted. Had Mrs. Franz been present, and have given this testimony, it would have been necessary to have laid a foundation for this attempted impeachment by asking her with reference to such conversation with Dr. Whitney, etc., before the state would have been allowed to introduce it.
It is further contended that there was error in the following: It appears that near the conclusion of the case on rebuttal the prosecuting witness was recalled for the purpose of being examined as to some unimportant matter, and she took her child with her upon the stand. While there, upon objection being made to her having the child with her, she testified that she had been directed by one of the state’s attorneys to so take the child, and it appears that this was done solely for the purpose of exhibiting the child to the jury and of exciting prejudice against the defendant, and we are of the opinion that such action was sufficient to entitle the defendant to a new trial.
Reversed.
Anders, J., concurs.
Hoyt, J., dissents.