#### State of Iowa v. George Bess, Appellant.

Corroboration: charge upon, in seduction. An instruction, on a prosecution ior seduction, that ii the jury found from the evidence, other than that of prosecutrix, that defendant visited her as a suitor, “this, while by no means conclusive, will be sufficiently corroborative of her evidence tending to connect the defendant with the offense,” is erroneous because instead of leaving the sufficiency of such corroboration to the- jury, it was likely to be understood to charge that the corroboration was . made out by such visits.

*676
      *Appeal from Dallas Distñci Court.*— HoN. Jaeces D. G-amble, Judge.

Thursday, December 14, 1899.

The defendant was convicted of tbe crime of seduction, and from tbe judgment, wbieb required tbat be be imprisoned in tbe state penitentiary, be *appeals.*

Reversed.

*P. Stephen Harms*for appellant.

*Milton*Bemley, Attorney General, and *Chas. A. Van*Vl&ck, Assistant Attorney General, for tbe State.

Robinson, C. J.

Tbe indictment charges tbát on tbe lOtb day of January, 1897, tbe defendant seduced and debauched one Stella. Dawson, an unmarried woman of previously chaste character. Tbat tbe defendant bad sexual intercourse with tbe prosecutrix on or about tbe date specified is admitted by him, and tbe state claims it was accomplished under promise of marriage, with tbe aid of various seductive arts. He denies tbe alleged promise of marriage, and claims that tbe sexual intercourse was not tbe result of any persuasion or seductive practice on bis part. It is claimed for him, in argument, tbat be, and not tbe prose-cutrix, was the person seduced. At tbe time of tbe first intercourse be was sixteen, and tbe prosecutrix was twenty-one years of age. He testifies tbat be first saw her in July, 1896; tbat be bad not been introduced to her, although she spoke to him, but tbat be did not say anything in response; tbat be next saw her on a street of De Soto, but neither then spoke to tbe other; tbat be next saw her in a church, when she approached him and said, “Hello, George Bess;” that be did not know her at tbat time, but asked to accompany her to her home, and that she consented, and tbat be walked with her to her home, but did not enter it_; that be next saw her about ten days later at cbureb, and tliat be again asked ber *677to accompany her borne; tbat sbe consented, and tbat on tbeir arrival there be went into tbe bouse, on ber invitation; tbat in tbe room were two sisters of tbe prosecutrix, and two other young men; tbat within a short time tbe light was blown out, tbe prosecutrix seated herself on bis lap and placed ber arms about bis neck, and within fifteen or twenty minutes, without any suggestion by either of them, they bad sexual intercourse; tbat be did not profess any affection for ber; and tbat they did not talk of marriage. Tbe prose-cutrix testifies tbat sbe met tbe defendant tbe first time in July, 1896, and tbat sbe then “simply bad a passing conversation with him;” tbat sbe “bad no introduction to him by any one;” tbat sbe next saw him in church, in January, 1897.. when be walked up to ber and asked permission to take ber home; tbat sbe consented, and be walked with ber to ber home, and kissed ber when they separated at tbe door; tbat sbe was next with him about two weeks later, when be again accompanied ber borne from church; tbat on the way borne they became engaged to be married, and when they reached ber borne they entered tbe bouse at her request; tbat a short time thereafter sbe sat on bis lap, and tbat within about two hours, 'in consequence of bis promises and solicitations they bad sexual intercourse; tbat no one besides themselves was in tbe room; and tbat it was tbe first time sbe bad ever bad sexual intercourse with any one.

Tbe court charged tbe jury as follows: “Fourteenth. The defendant cannot be convicted upon the evidence of the said Stella Dawson alone. Before you can find him guilty in this case, tbe said Stella Dawson must be corroborated by other evidence tending to connect the defendant with the commission of the offense charged, and tbe corroborating evidence required, in order to warrant tbe conviction of the defendant, must be evidence tending to strengthen and corroborate the evidence of her, the said Stella Dawson, and to single ¡and point out tbe defendant as tbe person who committed the offense; and, in determining whether or not tbe prosecutrix *678in this case bas been so corroborated, it is proper for yon to consider any and all letters written by the defendant to the prosecutrix, if any; what, if anything, he said with reference to marrying prosecutrix; together with any and all other of his declarations, if any, and the conduct as shown and established by testimony of witnesses other than Stella Dawson. Corroboration, may be found, not alone in any one particular fact, but in the relations of the parties and the attending circumstances; and if you find from the evidence, other than that of Stella Dawson, that the defendant visited the prosecutrix as a suitor, this, while by no means conclusive, will be sufficiently corroborative of her evidence tending to connect the defendant with the offense.” The last part of this paragraph is objected to by the defendant on the alleged ground that it invaded the province of the jury, in directing it that, if “the defendant visited the prosecutrix as a suitor,” that fact was sufficient to- connect the defendant with the offense: charged. It is'insisted on the part of the state that the portion of the charge criticised was fully authorized by numerous decisions of this court, to which reference is made. It was said in *Pollard v. State,*2 Iowa, 567, that “it is within the province of the court to instruct the jury whether the facts proved, if believed, constitute the offense charged;” but what was thus said referred to facts which the jury should find to be established, and not to the weight which should be given to evidence in considering what facts had been proven. In *State v. Curran,*51 Iowa, 112, it was said of the defendant, with relation to the prostcutrix: “The fact that he was her suitor, proven otherwise than by her own testimony, tends to make creditable her own testimony that her proven seduction was effected by him.' The corroboration, while by no means conclusive, must impress every one who has any knowledge of human nature as exceedingly cogent.” It will be noticed that it was not held that such corroboration was sufficient. It was said, however, in *State v. McClintic,*73 Iowa, 663, with reference to an *679alleged seduction, “The fact that the parties kept company together, and acted as lovers usually do, and other circumstances, are regarded sufficient as corroborating evidence tending to connect the defendant with the offense.” It was also said in *State v. Baldoser,*88 Iowa, 55, a case in which the defendant was accused of the crime of seduction, — that “it is clearly established by the testimony, other than that of the prosecutrix, that the parties were suitors; and, under repeated decisions of this court, the facts established are sufficient in corroboration.” It will be observed that in each of the two cases last cited the jury had found the defendant guilty; and what was said by this court had reference to the sufficiency of the evidence to sustain the verdict, and was not intended to hold that proof that the person accused of the seduction was a suitor of the prosecutrix, and that they acted as lovers, would in all cases be sufficient corroboration of the testimony of the prosecutrix that she had been seduced by him. On the contrary, this court has always held that the sufficiency of the corroboration is a question for the jury to decide. Thus in *Andre v. State,*5 Iowa, 389, 399,— a case in which the defendant was charged with the crime of seduction, — it was said: “Acts showing intimacy, opportunity, and inducement * * * certainly tend in some degree to corroborate the witness. * * * The weight and value of such evidence is for the jury to consider, and it is for them to- draw their conclusions accordingly.” In *State v. Bell,*79 Iowa, 117, — a seduction case, — it was said, “The fact that the parties kept company together^ and acted as lovers usually do, and other circumstances, may be sufficient corroboration.” Of the corroboration required, it was said in *State v. Lauderbeck,*96 Iowa, 258: “It may be in the form of admissions made by the defendant, or it may be to the effect that defendant was a suitor of the prosecutrix, and that the parties kept company together, and acted towards each other as lovers usually do. Some, if not all, of these matters were testified to in this cáse by others than *680the prosecutrix, and it was for the jury to determine whether the prosecutrix was sufficiently corroborated. It was said in *State v.*Smith, 81 Iowa, 522, of corroborative evidence, “The sufficiency of the testimony as a whole to so connect him [the defendant] would be a question, for the jury.” See, also *State v.*Wells, 48 Iowa, 671; *State v. Gunagy,*84 Iowa, 177; *State v.*Carnagy, 106 Iowa, 483. The meaning intended to be conveyed by the portion of the fourteenth paragraph of the charge in question is not clear. It states that if the jury found that, if the defendant visited the prosecutrix as a suitor, that fact, “while by no means conclusive, will be sufficiently corroborative of her evidence tending to connect the defendant with the ofíense.” It may be that the meaning intended to be conveyed was that the fact referred to, although not conclusive that the defendant was connected with the alleged seduction, tended to connect him with it, and might be regarded by the jury as sufficient to show the connection necessary to a conviction; but we do not think that was the most natural and obvious meaning of the language used. On the contrary, we are of the opinion, that the jury might well have understood from it that, if the defendant visited the prosecutrix as a suitor, proof of the fact alone was sufficient corroboration of her testimony. While that may have been true, it was for the jury, and not for the court, to determine the fact; and .the district court erred in giving the part of the charge which we have discussed. Other questions presented in argument are not likely to arise on another trial. For the error pointed out, the judgment of the district court is reversed, and the cause remanded for a new trial. — Reversed.

GRANGER, J., not sitting.