(after stating the facts). It seems to us so plain that the court erred in refusing to give the second instruction for the defendant that we deem it unnecessary to discuss it.' This instruction is that, “while Julia Robinson is presumed to have been virtuous at' the time of the alleged intercourse,' if the jury believe from the evidence or circumstances that she was hot'chaste and virtuous, and did not possess actual personal chastity, or if the jury have reasonable doubt about this,_ they should acquit.”
Actual personal chastity on the part of the woman was necessary to make out the crime of the defendant, and if the jury had a reasonable doubt that she possessed this, they were bound to acquit the defendant. Actual personal chastity on her part was a material element of the crime. Polk v. State, 40 Ark. 486.
It seems equally, clear to this court that there was no prejudicial error committed by the court below in striking out and refusing to' give the last clause of instruction No. 1, asked for by the defendant, which is as follows: “And she would not have yielded to defendant’s embraces without such promise of marriage.”
The court had instructed the jury by instruction No. 3 that, before they could convict the defendant, they must find that such intercourse was had by reason and on account of defendant’s promising to marry the girl, who at the time she yielded to his embraces was in possession of actual personal chastity. The last clause of instruction one was covered in effect by the first clause of same, and the court properly struck it out. There was no necessity to repeat what had been given.
Was the indictment sufficient, which is as follows (leaving out the formal parts) to-wit: .“That said James Walton, in the county and state aforesaid, on the 15th day of May, 1901, being a single and unmarried man, unlawfully and feloniously did obtain carnal knowledge of one Julia Robinson, a single and unmarried female, by virtue of a false promise of marriage to her previously made, by said James Walton, against the peace and dignity of the state of Arkansas.”
Was the judgment of the court correct in refusing to arrest the judgment after conviction on this indictment? Did it state facts constituting a public offense under the laws of Arkansas ?
Seduction of a woman is made a crime in most states by statute. . It consists- in the act. of seducing an unmarried female “of previous chaste character,” and having sexual intercourse with her by virtue of a feigned or .pretended. marriage or of any false or feigned express promise of marriage.” These are the essential ingredients of seduction, according to our statute. Sec. 1900, Sand. & H. Dig.
Though the statute does not mention that the woman must be “of previous chaste character,” it plainly implies it; said this court in Polk v. State, in which case the opinion was delivered by Mr. Associate Justice Smith. “The legislature never intended to send a man to the penitentiary for having illicit connection with a prostitute or woman of easy virtue, where she had consented, even under a false promise of marriage. The statute of Michigan also omits the words “of previous chaste character,” but it has received the same construction as if they had been there. Polk v. State, 40 Ark. 486.
It is held that the previous chaste character of the woman before seduction is an element of the crime, and it should be alleged in an indictment for that offense, and unless it is shown the defendant can not be convicted. The elements constituting the offense must be alleged in the indictment. If the statute does not sufficiently set out the facts which constitute the offense, the indictment must do so, and if it fails to do so, it is insufficient, though the offense be alleged in the .language of the statute itself, which in ordinary cases is sufficient. 10 Enc. Plead & Prac. 487; Eubanks v. State, 17 Ala. 183; 1 Bishop, Cr. Proc. §§ 77, 88; Riggs v. State, 104 Ind. 161, 162; Clark, Cr. Proc. pp. 153, 163; Wharton, Cr. Law, 1757; Com. v. Filburn, 119 Mass. 298; Com. v. Hampton, 5 Gratt. 590; Com. v. Stack, 19 Pick. 305. *
The chastity of the woman before seduction is presumed, but the presumption of chastity may be rebutted, and the presumption of innocence of the defendant overcomes the presumption of chastity. In McArthur v. State, 59 Ark. 431, it was said by Mr. Associate Justice Riddick delivering the opinion of the court: “We think the court erred also in telling the jury that the presumption was in favor of the chastity of the prosecuting witness. The presumption of virtue in one citizen can not work the condemnation of another, in whose favor, when charged with crime, the law raises the presumption of innocence.” It was held in West v. State, 1 Wis. 187, that the court did not presume, in the absence of testimony, the previous chaste character of the female; such presumption being incompatible with the presumption of innocence of the accused. The court said: “These presumptions are always to be used in the administration of justice as a weapon of defense, and not of assault.” The chastity of the female is presumed, but may be impeached by proof of immorality or indecorum or her general bad'character before seduction, and in rebuttal the state may prove her previous purity by her own testimony or by her general reputation, as held in Polk v. State, supra. The court erred in overruling the motion in arrest of judgment.
The judgment is reversed, and the cause is remanded for further proceedings.
Bunn, C. J., did not participate.This case overrules Cheaney v. State, 36 Ark. 74, in so far as that case holds good an indictment similar to that passed on here. Perhaps the case of Polk v. State, 40 Ark. 482, impliedly overruled the earlier case. (Rep.)