The defendant appeals from a judgment of conviction of seduction, and contends that there was error in the refusal of the learned county judge to charge this request: “ If the prosecutrix submitted herself to the defendant, relying upon his promise that if she got into trouble as a result of the intercourse, he Would marry her, the defendant is not guilty.” Upon the element of promise, the learned judge had only charged : “ In order to arrive at a verdict of guilty, it is necessary that you find from, competent evidence in the case that a valid promise of marriage existed, and that under the influence, and induced by that promise, this young woman submitted to. the acts of illicit sexual intercourse testified to.”
The statute does not punish the man when the woman bargains, for marriage only in case there be danger of some public knowledge of the illicit intercourse, or of proof thereof. Therefore, if the moving cause of the woman’s consent be a promise of marriage conditional upon her pregnancy, the defendant cannot be found guilty. (People v. Van Alstyne, 144 N. Y. 361; People v. Duryea, 30 N. Y. Supp. 877; S. C., 81 Hun, 390, approved in People v. Van Alstyne, supra.)< If a woman betrothed submit to her lover, the absolute promise implied in betrothal will not warrant his conviction for seduction if she yield in reliance on his special promise that he will marry her in case pregnancy follow the illicit relation. (People v. Van Alstyne, supra.) Though testimony was given in this case which would, have justified the finding that the woman and the man were under engagement of. marriage, this did not warrant the refusal of the request if there was testimony which fairly and reasonably would, have justified the finding from the whole.case that the inducement, was the special and conditional promise.
The prosecutrix testified that she engaged herself to the defendant early in June, 1900; that she had intercourse with 1 him first *431at the close of that month, which was continued for some months; that she first told him of her condition in September, 1900, when she said that she “ was in trouble.” On cross-examination she testified : “ Q. Was this talk of getting married repeated on the night that he first had connection with you ? A. Yes, sir. Q. What did he say then ? A. He said if I got in any trouble he could go out and work and take care of me. Q. If he got you in trouble after connection he would go out to work and take care of you ? A. Yes, sir. Q. And did you rely upon that statement in permitting him to have connection with you, that if you got in trouble he would marry you and go to work and take'care of you ? A. Ho, sir, we were engaged before that. Q. Did you pay any attention to what he said that night that he would marry you and take care of you ? A. Yes, sir. Q. Is that the reason why you permitted him to have connection with you, his promise that if he got you into trouble he would take care of you, is that what induced you to let him have connection with you? A. We were engaged first. Q. Is that promise what led him to have connection with you ? A. Yes, sir. * * * The subsequent time that he had connection he did not renew that promise that if I got into trouble he would marry me. Q. He said that only once ? A. He said it often, but not after each time. Q. And did you rely upon that promise in permitting him to have com nection with you ? A. Yes, sir.” On redirect examination she also testified' that she permitted him to have intercourse because of the engagement in June.
I think that it cannot be said that there was no testimony which would have justified a finding from the whole case that the reliance of the woman was upon the conditional promise, and, therefore, I am of opinion that the exception was well taken.
Armstrong v. People (70 N. Y. 38), cited by the learned district attorney, does not touch the question presented by this appeal, as appears both by page 53 of the reported case and by the comments ' of Peckham, J., in the Van Alstyne Case (supra, p. 364).
The judgment of conviction must be reversed for the error and a .new trial granted.
All concurred.
" Judgment of conviction reversed and new trial ordered.