I concur in the reversal of the judgment, and will briefly state the grounds thereof. Counsel for the appellant insist that the court instructed the jury outside of the evidence—gave them some mere abstract propositions of law, which, however correct in a proper case, had no application to any facts which the evidence tended to prove ; and that the same was therefore misleading. I will, therefore, proceed to examine this objection.
The only evidence on the part of the plaintiff is her own, and the substance of it is as follows : That she was twenty-eight years old, and unmarried; that she first met the defendant in the parlor of the Jackson House, a hotel in Dalles City, in April, 1882, at which time he was introduced to her by Mrs. Cleek; that at the time of his introduction to her he merely saluted her in the usual manner, and after remaining in the parlor a very short time went out; that a few minutes thereafter he came again into the parlor, when he and plaintiff had a few words of commonplace conversation, but nothing of such importance as to impress itself on her memory; that the next time she saw him was in June, and under the following circumstances : Plaintiff was taking dinner at a restaurant on First street, in Dalles, when defendant came into the restaurant, and recognizing her, spoke to her, simply passing the time of day, and there was no further conversation between them, and that defendant left the restaurant before she did ; that the same afternoon she met him on Second street, near the Palace Lodging House, and they again passed the time of day. lie said he was going to Portland or somewhere down that way ; talked about the weather, and asked her where she lived. She told him she lived in the Palace Lodging House, gave him the number of her room, and asked him to call upon her. That *506evening he and Walter Looney—a person with whom she was slightly acquainted, called upon her at her room. Looney remained only a few minutes, but defendant remained until 8^- or 9 o’clock; probably staid two hours, conversing with her ; that at one of these interviews, but at which one she did not remember definitely, she went with defendant and had some ice-cream; that at the time he called with Looney he said he was on his way below, would be back in two weeks on his way home to Prineville, and would then call upon her. That in two weeks or so he returned from below, and as she was informed called to see her in the afternoon, but she was not in ; that on the same evening he called upon her at her room, and remained an hour and a half or two hours, and in course of conversation said he was going to Prineville, and would be back to the Dalles in about four weeks; that in all these interviews he treated her respectfully, and behaved himself “ like a perfect gentleman ”; that the next time she saw him was on or about the first day of August, 1882, at which time he called upon her at her room, Looney again being with him’; that Looney remained but a short time, and after he left, defendant proposed to go and get some beer, to which she replied “ she did not care for any” ; that defendant did go and get some beer, and both he and she drank some, she drinking but little, and defendant drinking an entire glass ; that then the defendant grabbed her and fought with her, and she protested and fought until she had no strength ; that during the struggle defendant promised to marry her and made every promise, but she still refused to yield to him or consent to his embraces, and defendant had sexual intercourse 'with her ; that while she and defendant were struggling and fighting he made considerable noise, and she begged him not to make so much noise, because the other rooms in the lodging-house were occupied, and the noise would attract the attention of those in such other rooms; that she didn’t know how long defendant staid, but that it was not until morning, and that during the time he had sexual intercourse with her again, the particular circumstances of which she did not remember; that the next evening the defendant called again *507and spent the evening with her in her room, but nothing improper occurred during that call, but that he promised to come back and marry her; that defendant never did have sexual intercourse with her, except on the one night, and under the circumstances hereinbefore related ; and that she never did. to her recollection, consent to have sexual intercourse with the defendant; that she did not undress herself at the time, and that defendant did not pay her any money on that occasion ; and that he never did pay her any money except §>¿0 or f>30 at Portland ; that pregnancy and the birth of a child followed said intercourse. She also testified that before her meeting with the defendant she had been twice married and twice divorced, and had borne two children as the fruits of said marriages. Based on this evidence and this alone, the court, amongst other things, charged the jury as follows: “Therefore, if you shall find that the defendant did, through enticement or persuasion, or by artifice, urgent importunity based on professions of attachment, or by promise of marriage or the like, overcome the plaintiff’s reluctance and scruples, and thereby induced her to have unlawful intercourse with him, then you shall find for the plaintiff and assess her damages.
There was no evidence before the jury of any “ enticement ” or “ persuasion,” “ artifice,” or “ urgent importunity based on professions of attachment,” and therefore the court erred in charging the jury these were matters which they had a right to consider. This charge assumed that there was evidence on the several subjects before the jury which they had a right, and that it was their duty, to consider. The instruction, in a proper case, where there is evidence to justify it, undoubtedly states the law correctly; but as applied to the facts of this particular case it was clearly erroneous, and its only effect was to mislead the jury. The court ought to have confined its charge to the particular facts appearing in evidence. These only the jury had a right to consider; but when the court went beyond them, the necessary effect of such a charge was to lead the minds of the jury to consider the additional facts referred to by the court, and which do not elsewhere appear in the case.
*508A reference to some of the authorities bearing on this question will better illustrate the rule. In Hirshburg v. Strauss, 64 Cal. 272, the court charged the jury on the subject of exemplary damages, in a case where there was no evidence on that subject. The Supreme Court reversed the judgment, saying : “ There was no evidence of any character to justify the court in submitting to the jury any question relating to exemplary damages. On this point the charge was entirely abstract, and was calculated to mislead the jury.”
So in Clement v. Boone, 5 Ills. App. 109, it is said : “ An instruction that submits it to the jury to find if a certain fact exists, virtually tells them that there is evidence tending to prove such fact; and if there is no evidence tending to pi ove it, the instruction is calculated to mislead the jury, and is ei'roneous.” And the same rule is in effect stated in Tantum v. Tantum, 5 Ills. App. 598; Board of Trustees v. Misenheimer, 78 Ills. 22 ; St. Louis A. T. H. R. R. Co. v. Manley, 58 Ills. 300; Oxley v. Storer, 54 Ills. 159; Hamilton v. S. Mf'g Co., 54 Ills. 370 ; Jordan v. Headman, 61 Pa. St. 176; State v. McCurry, 63 N. C. 33 ; Karriger v. Greb, 42 Mo. 44 ; American Express Co. v. Parsons, 44 Ills. 312.
So in Bank v. Hubbard, 8 Ark. 183, it was held erroneous to instruct the jury that a loan of depreciated bank paper by the bank was or was not usurious, when there was no evidence that the note sued upon was given for a loan of such paper. Such instructions are abstract.
The like rule was applied in the American Transportation Company v. Moore, 5 Mich. 368. It is there said : “ There was no evidence showing or tending to show a written contract of the kind mentioned in that charge, and the charge was therefoi'e improper, as tending to mislead the jury.”
The same princqde is also enunciated and appled in Dula v. Cowles, 4 Jones L. (N. C.), 519 ; Montgomery, Admin'r, v. Evans, 8 Ga. 178 ; Manwell v. Briggs, 17 Vt. 176 ; Herndon v. Bryant, 39 Miss. 335 ; Oliver v. The State, 39 Miss. 526 ; Henderson v. Stiles, 14 Ga. 135 ; Atkins v. Nicholson, 31 Mo. 488. These citations might be greatly extended, but it is un*509necessary. The principle is believed to be without an exception that whenever a trial court charges the jury upon matter which is material to the cause, and upon which there is no evidence, the charge is necessarily erroneous and misleading. Such instructions may be sound as abstract propositions of law, but their obvious and necessary effect is to draw the minds of the jury from what is, to wdiat is not, in the case.
The alleged promise of marriage was of course before the jury, but its value as an element or means of seduction under the circumstances disclosed by the plaintiff’s evidence was but slight. The plaintiff says she never did consent. If she did not, then she was not seduced, and the defendant, if he forced her, ought to have been tried for an offense under the criminal statutes ; but if she would listen to or be influenced by an offer or promise of marriage under the circumstances she says this one was made, it would look more like the vulgar bargain of one prompted by her own criminal desires, than the yielding of reluctant virtue, on the faith of what could be regarded by her as an honorable contract of marriage. (People v. Clark, 33 Mich. 112.)