-The defendant was charged with the seduction of one Eliza A. Wallace. She was at the time of the alleged seduction living witht he defendant’s mother, and the defendant was living in the same family. The prose-cutrix testified that the seduction took place on the night of the 27th of April, 1885, in the house of the defendant’s mother, and in her absence from home; and showed, we think,'that her consent was gained in about five mimites after the first solicitation, and by a promise of marriage made then for the first time. It does not appear that the defendant had ever kept company with her as a suitor, or had sustained any relation to her except such as arose from the fact that she was a member of the family in which the defendant was living.
The position, of the state is that the defendant was not prejudiced by the misstatement; but it appears to us otherwise. The date of the child’s birth is fixed beyond dispute. The usual period of gestation being nine months, the natural inference arising therefrom was that the child was not begotten later than April; and if the jury had believed that the child was begotten in April or earlier, and had believed the
2. seduction : period of gestation. The defendant asked an instruction in these words: “ In the absence of evidence showing the premature birth of a child, ^ie law Presume that R was born after the usual 'and ordinary period of gestation in the human family; and if you find that the prosecuting witness gave birth to a child on the 27th day of December, 1885, and there is no evidence showing that the birth of said child was premature from sickness, accident or other cause, then you may and should from such facts find that the prosecuting witness had sexual intercourse with some man about nine months prior to the date of the birth of the child.” The court refused to give this instruction, and the defendant assigns the refusal as error. In our opinion, the court did not err. If the doctrine contended for were to be sustained, it would follow that every child born within less than the ordinary period of gestation from the time of marriage would be presumed in law to have been begotten out of wedlock, unless it could be shown that the birth was premature from sickness, accident or otherwise; and that, too, in contravention of the positive testimony of the mother that the child was not begotten out of wedlock. The ordinary period of gestation may be shown as a fact raising a slight natural inference as to the time when a given child was begotten, but such inference is by no means conclusive, even in the absence of evidence that the child was premature, from sickness, accident or otherwise. The most
structions: reference to cutrixas°ae" giri‘ III. The court in its instructions to the jury spoke of the prosecuting witness as “ the girl.” It is stated by the defendant’s counsel that the court used these words nineteen times. We have not verified the statement by count, but observe that the words were nsed frequently. The evidence shows that the prosecuting witness, at the time of the alleged seduction, was twenty-four years old. The defendant claims that she was in no proper sense a girl, and that the court improperly designed to suggest an explanation of what was contended by the defendant to be incredib.le, that a chaste woman should yield to a man’s embraces on a promise of marriage, without previous courtship, and within about five minutes from, the time of first solicitation. The jury had before it the evidence as to what the age of the prosecutrix was, and we hardly think that we should be justified in reversing upon such grounds. As, however, the case is to be remanded for another trial, we feel called upon to say that the use of the words in question is not, we think, without objection. While they could hardly be regarded as sufficient to mislead the jury in regal’d to the prosecutrix’s age, they might be understood as evincing a feeling on the part of the court against the defendant. The court used the words in a strained sense. The case was certainly not one of a girl yielding to the embraces of a man, nor, on the other hand, was it a case, as the defendant claims, of a woman yielding to the embraces of a boy. There does not appear to have been anything in the respective ages of the parties to justify any allusion to the subject.
4__evl_ roboration: macy.in 1 IV. The defendant claims that the prosecution was not corroborated by any evidence whatever. It is not denied by the state that she should have been, in order to justify a conviction; but it is contended that she was in fact corroborated, and the court instructed the jury upon the theory that there was evidence by which
The judgment must be
Reversed.