People ex rel. Scharff v. Frost

Clarke, J. (dissenting):

Appeal "from an order dismissing a writ of habeas corpus and remanding the prisoner. Belator was indicted for seduction under promise of marriage under section 284 of the Penal Code which provides: “A person who, under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character, is punishable by imprisonment for not more than five years, or by a fine of not more than one thousand dollars of by both.” He pleaded guilty in the General Sessions on April 24,1908, and was *477remanded for sentence. Between said day and May 6,1908, he married the complainant with the approval and consent of the court and on May sixth, the judge presiding, being advised of said marriage, suspended" sentence. It is alleged in the traverse to the writ that thereafter the defendant and his wife lived together.

On February 17, 1909, defendant was rearrested, the suspension of sentence was revolted, and he was sentenced to be imprisoned at' State’s prison at hard labor for a minimum term of four years and the maximum of four years and six months. He sued out this writ upon the ground,¡first, that the suspension of sentence was without jurisdiction and in violation of law and that he should have been unconditionally discharged, and, secondly, that the subsequent revocation of suspension and sentence was without jurisdiction and in violation of law and that, therefore, he is now detained and imprisoned illegally. He bases his contention upon section 285 of the Penal Code, which provides that “ The subsequent intermarriage of the parties, or the lapse of two years after the commission of the ofíense before the finding of an indictment, is a bar to a prosecution for a violation of the last section.”

The argument of the appellant is that the provisions of sections 284 and 285 were intended to embody into the Penal Code the provisions of chapter 111 of the Laws of 1848, the final clause of which reads: “ And provided further, that the subsequent marriage of the parties may be plead in bar of a conviction ; ” that as the Penal Code substitutes “prosecution” for “conviction” this includes the whole criminal action and that public policy, common decency and justice, as well as a due regard for the welfare of the wronged woman, demand a construction which would prevent the sentencing of a defendant for the seduction, after a marriage, notwithstanding the fact that said marriage did not take place until after indictment and plea or verdict of guilty,; that the condonation of the crime by subsequent marriage, under the statute, barred the prosecution as effectually as a pardon would have stayed it.

The real question at issue is the meaning of the words “is a bar to a prosecution for a violation of "the last section.” The district attorney claims that prosecution means indictment, and that the statute from which the section is derived contemplated a plea in bar which must be interposed at the time the prisoner was arraigned *478to plead to the indictment. The appellant asks that it he interpreted as if it read “further prosecution,1’’.and claims that a locus pcenitenUoé. exists up to the time of judgment.

Not much help can be derived from cases in other States because of the varying statutory provisions. In 25 American and English Encyclopaedia of Law [2d ed.], 248, the rule is stated: “ In a great many jurisdictions the statutes provide that if the seducer marries the woman seduced, any further prosecution against him for the seduction shall be, barred, and that if such a marriage takes place after indictment but before conviction, the prosecution shall be discontinued.”

In Indiana (State v. Otis, 135 Ind. 267) and in Michigan (People v. Gould, 70 Mich. 240), independently of statute, it h'as been held that as the promise had been kept it would be against public policy and public decency to permit a prosecution to be carried forward in the. courts of justice thereafter. It has been held under the California Penal Code (People v. Kehoe, 123 Cal. 224, and People v. Samonset, 97 id. 448) that the marriage must take place prior 'to the finding of an indictment or the filing of an information charging the seduction. The New Jersey statute provides that if the man. marry the female at. anytime before sentence, the same shall be suspended, and he shall be discharged from custody, and if he marry the femále after sentence, he shall be discharged from further imprisonment. (State v. Brown, 64 N. J. L. 414; affd, 65 id. 687.) In Connecticut the court held that a subsequent marriage is no defense, though it is a mitigating circumstance in determining the punishment. (State v. Bierce, 27 Conn. 319.)

The word “ prosecution ” is defined in 23 American and English Encyclopaedia of Law [2d ed.], 268: “To prosecute is to proceed against judicially. A prosecution is the act of conducting or waging a proceeding in court; the means adopted to bring a supposed offender to justice and punishment by due course of law. It-is also defined as the institution or commencement and continuance of a criminal suit; the process of exhibiting formal charges against an" offender before a legal tribunal, and pursuing them to final judgment on behalf of the State or Government, as by indictment or information.” By the Penal Code of Texas (Art. 26) a prosecution is defined to be the whole or any part of the procedure which *479the law provides for bringing offenders to justice. (Ex parte Fagg, 38 Tex. Cr. 573.) In State v. Hardenburgh (2 N. J. L. 339) prosecution is defined to be the following up or carrying on of an action or suit already commenced until the remedy be attained. (See, also, 32 Cyc. 727.)

I do not agree with the contention of the district attorney that prosecution means indictment. I think the safer interpretation of this statute to Ire that the prosecution referred to continues until' final judgment. If the plea of guilty and the suspension of sentence put an end to the prosecution, how was it possible to rearrest the defendant and sentence him by a final judgment to a term of years in State’s prison ? The very use of the words suspension of sentence, from which_we have heretofore held no appeal could lie (People v. Markham., 114 App. Div. 387), implies what it says, a suspended prosecution and not a completed one. In People v. Fabian (192 N. Y. 443) the Court of Appeals held that the word ££ convicted ” in the Election Law and the Constitution affecting the right of suffrage meant that conviction evidenced by judgment. That construction was in the interest of the defendant. It seems to me in the case at bar that we should hold that prosecution” must continue to judgment, and so that the privilege given to the defendant to bar prosecution by marriage of the female must also continue until final judgment.

In Cheney v. Arnold (15 N. Y. 353) Denio, Ch. J., said: “ By an act ^passed in 1848 (Session Laws, ch. Ill) the seducing and having illicit conversation with an unmarried female under promise of marriage is made a misdemeanor punishable by imprisonment, but the offense may be absolved by a subsequent marriage. The Legislature intended by this enactment to protect female purity and not to deprive a wife of her lawful husband.”

If marriage after indictment is a bar, of course that marriage is induced by fear of prosecution, and there is no logical reason. why punishment should not be barred by such marriage up to the tiiiie of final judgment. The purpose of subsequent wiping out of the effect of the crime allowed by the statute is of course in the interest of the betrayed woman and'to prevent the bastardizing of the child. This is as important as the payment by the defendant of the debt to the State caused by his wrongdoing. I take the view in con*480struing provisions of the Penal Code open to two constructions that words should be interpreted in that sense which will secure the interests of the defendant and accomplish the plain object of the statute, based upon the underlying reason therefor, rather than in a stricter sense to secure the punishment or disability of the. defendant or the forfeiture of his property.

In my opinion the order appealed from should be reversed, the writ sustained and the prisoner discharged.

Houghton, J., concurred.

Order affirmed.