#### The State of Iowa v. Reinheimer, Appellant.

Criminal Law: review or verdict. The rule with reference to granting new trials on appeal in criminal cases for want of 7 evidence is different from that applied in civil cases, and the supreme court will not, in a criminal case,- support a verdict, if it be against the clear weight of the evidence.

Unchastity: *Not provable by reputation.*In a prosecution for 2 seduction, the defense cannot prove the general reputation of the prosecutrix as to chastity.

-Chastity so provable when. After the defendant had introduced testimony as to the unchastity of the prosecutrix, the state may 4 sustain her character by proof of her general reputation in the community in which she lives.

•Corroboration in seduction. In a prosecution for seduction, the fact that the parties kept company, and acted as lovers usually 5 do, and other like circumstances, are sufficient corroboration of the evidence of the prosecutrix required by statute.

.Minutes of prosecutrix’s testimony: *Impeachment.*Extended notes of the evidence of the prosecutrix before the committing 3 magistrate, if usable to impeach at all, are not admissible for the defense as an entirety, but only such parts thereof as are at variance with her testimony on the trial, and to which her attention has been called.

.'Jiew Trial: newly discovered evidence: *Diligence.*An order denying a new trial for newly discovered evidence will not be 6 disturbed, if there is no showing of diligence or of ability to procure the evidence on a new trial, waiving the point whether new trial may be had in a criminal case for newly discovered evidence.

*625Evidence: conclusion and facts: *Non-expert.*A conclusion of a non-expert witness that a female was in a delicate condition at a 1 given time is inadmissible, but the witness may testify to the facts upon which his conclusion is based.

*Appeal from Linn District Court.*— HoN. H. M. Remley, Judge.

Saturday, October 28, 1899.

DEFENDANT was indicted, tried, and convicted of tbe crime of seduction, and from tbe judgment imposed appeals.

*Reversed.*

*D. W. Griffith*and *Smith & Smith*for appellant.

*Milton*Remley, Attorney General, *Chas. A. Van*Vleclc, and *W.*01 *Clemans*for tbe state.

Deemer, J.

Tbe accused is charged with having seduced one Nora Dixon-on or about December 25, 1896. A witness with whom tbe prosecutrix was stopping at tbe time she claims to have been seduced testified to certain facts tending to show she (tbe prosecutrix) was enceinte in February of tbe year 1896, and then said: “I say she was in a delicate condition because she was sick tbe same that 1 any woman is; that is, sick in that way.” On motion of tbe stale, tbe court struck out the conclusion of tbe witness that prosecutrix was in a delicate condition, but allowed her testimony as to the fact of her condition to remain before tbe jury. Tbe ruling was correct. Tbe evidence stricken was tbe mere conclusion of tbe witness drawn from facts allowed to remain in tbe record, and as such it was inadmissible. Tbe witness was not an expert, and tbe facts upon which she gave her opinion were not so numerous, or of such nature, as that they could not be clearly brought before tbe jury. In these respects the case differs from those relied on by appellant.

*626II. A witness was offered by defendant to prove tbe 2 general reputation of tbe prosecutrix as to chastity. Tbis evidence was properly rejected. *State v. Prizer,*49 Iowa, 531; *State v. Shean,*32 Iowa, 88.

III. Tbe defendant offered in evidence wbat purported to be tbe extended notes of tbe evidence of tbe prose-cutrix taken down by a shorthand reporter at tbe time of the preliminary examination of tbe defendant, and tbis evidence was rejected. Tbis ruling was also correct. Such evidence could only be used for impeaching purposes, and 3 we have heretofore held that it cannot be so used. *State v. Hayden,*45 Iowa, 11. In any event, tbe whole of tbe witness’ testimony before tbe committing magistrate was immaterial. Only such parts of it as were at variance with her testimony given upon tbe trial of tbis case, and to which her attention bad been called, were proper to be considered for purposes of impeachment.

IV. After defendant bad introduced evidence tending to show tbe uncbastity of tbe prosecutrix, tbe state was permitted to sustain her character by proof of her general] 4 reputation in tbe community in which she lived. Tbis evidence was certainly competent. *State v. Shean*and *State v. Prizer, supra.*

V. Tbe fifth instruction relates to tbe corroboration of tbe evidence of tbe prosecutrix required by tbe statutes of tbe state. No complaint is made of tbe instruction, but 5 it is said there is no evidence on which to base it. We have frequently held that tbe fact that tbe parties kept company, and acted as lovers usually do, and other like circumstanes, are sufficient to' constitute tbe corroborating evidence necessary to connect tbe defendant with the offense. *State v. McClintic,*73 Iowa, 665; *State v. Wells,*48 Iowa, 671; *State v. Hayes,*105 Iowa, 86; *State v. Curran,*51 Iowa, 112.

VI. Some claim is made that tbe offense is barred by tbe statute of limitations. Tbe prosecutrix testified that *627sbe yielded her virtue on December 25, 1896. The indictment was found on January 19, 1898. If the witness is to be believed, the offense is not barred.

VII. The motion for a new trial was accompanied by affidavits tending to show newly-discovered evidence .relating to the chastity of the prosecutrix, and by an affidavit from the prosecutrix herself to the effect that she had had intercourse with defendant in February of the year 1896. 6 Newly discovered evidence is not in itself sufficient to warrant a new trial. *State v. Dimmitt,*88 Iowa, 562; *State v.*Potts, 83 Iowa, 317. But, if it were, there is no such showing of diligence or of ability to procure the evidence upon a retrial as would justify us in interfering. Again, affidavits from the witnesses whose evidence it is claimed was newly-discovered do' not accompany the motion, save in a single instance, and no reason is given for not presenting them.

VIII. It is insisted that the verdict is not sustained by sufficient evidence. The rule with reference to granting 7 new trials for want of evidence in criminal cases is different from that applied in civil. “This court, though proceeding carefully and cautiously, will interfere in criminal cases more readily than in civil. "We will not, in a criminal case, support a verdict, if it be against the clear weight of the evidence.” *State v. Wise,*83 Iowa, 596, and cases cited. The story of the crime as detailed by the prosecutrix is so unreasonable as to be entirely unworthy of credit. Her affidavit filed with the motion for a new trial shows that she had had intercourse with the defendant some months prior to the time it is claimed she was seduced, and she says that .she was induced to make statements to the contrary through the influence of her father and ofl an attorney employed to conduct the prosecution. There is also much other evidence tending to show her unchastity prior to the time she claims she was seduced. No one can read this record without feeling that a great *628injustice bas been done the defendant. The verdict is so manifestly against the clear weight of the evidence that we would be remiss in our dujty if we did not grant a new trtal. Some other matters are complained of but, as they are not. likely to arise on-a retrial, should one be had, we do not con--sider them. For the error pointed out the judgment is reversed, and the cause is remanded for a- new trial, should the state elect to proceed. — Reversed.