Wilson v. State

BRICKELL, C. J.

— The appellant was indicted under the statute (Code of 1876, § 4188), as amended by the later statute, approved February 25,1881, which provides: “ Any man, who, by means of temptation, deceptions, arts, flattery, or a promise of marriage, seduces auy unmarried female in this State, shall be guilty of a felony, and, on conviction, shall be imprisoned in tne penitentiary, for not less than one, nor more than ten years; but no indictment or conviction shall be had under this section, on the uncorroborated testimony of the female upon whom the seduction is charged, and no conviction shall be had under this section, if, on the trial, it is proved that such female was, at the time of the alleged offense, unchaste; and on the trial for such offense, the defendant shall be a competent witness in his own behalf.” — Pam. Acts 1880-81, p. 48.

The indictment, following the words of the statute, charges that the defendant, “ by means of temptations, deceptions, arts, flattery, or a promise of marriage, seduced,” etc. On the trial there were numerous exceptions taken to the rulings of the •court below, in the admission of evidence, and in the giving and refusal of instructions to the jury, which are now insisted upon •as erroneous, and it is further insisted that the indictment is insufficient.

1. The objection to the indictment is, that it does not charge the facts as to the means employed by the defendant to accomplish the seduction. The mode of stating or describing the offense, adopted by the pleader, is in conformity to the forms of indictments for statutory' offenses, whether of felony or misdemeanor, which are prescribed in the Code, and corresponds to the general rule of the common law, that such offenses ought to be stated or described in the words of the statute creating or defining them. — 1 Brick. Dig. 499, §§ 734-39. -An exception to the rule obtains, when the words of the statute, by reason of their generality, may embrace cases falling within their literal or largest meaning, which are not within the spirit and intent of the statute. Then, the use of the words of the statute is not a direct, explicit averment of the fact, in the doing or omission of which the offense consists. But there can be no case falling within the words of this statute, taken in their largest meaning; no seduction by any temptation, deception, art, flattery, or by any promise of marriage, which is not within the spirit and intent, and within the mischief against which the statute is directed. It is true, as is insisted by the counsel for the defendant, that the facts and circumstances constituting an offense generally, ought to be stated in an indictment. "'But the statutes have dispensed with much of the technical nicety and particularity in this respect, which was observed at common law, regarding such facts and circumstances rather as matter of evidence than of pleading. And when the offense is of statutory creation, if a statement of it in the words of the statute, with reasonable certainty, informs the accused of the nature and character of the offense, and enables the court, on conviction, to pronounce the proper judgment, the requirements of the law are satisfied.

2. It was not permissible for the prosecuting witness to testify, that she did not willingly yield to the embraces of the defendant, or that she yielded in consequence of a promise of marriage, or of any act or declaration of the defendant. The material, controlling inquiry, in all cases it is the province of the jury to determine, is, whether there was seduction ; whether the criminal connection resulted from the arts and wiles of the defendant, or from the ungoverned passions of the woman. The cause moving her to the sin is essentially and peculiarly 'matter of inference from all the facts- and circumstances in evidence, carefully weighed and considered; being matter of inference or deduction from facts and circumstances proved or presumed, it is not a fact to which a witness can testify. As has been said, witnesses are not allowed to reason to the jury— they, must speak to and of facts. Like intention, or motive, or belief, inferential from facts, the jury must deduce the conclusion, unaided by the opinion of. witnesses. — Peake v. Stout, 8 Ala. 647; Whetstone v. Bank, 9 Ala. 815. Questions of this-character, as to the influence exerted upon the mind or conduct of the woman by the acts or representations of the man, like evidence declaratory, or in negation of a specific intention, which may be material, we are aware, is allowed by some authorities. But a different rule has always prevailed' here, and such evidence uniformly pronounced inadmissible.

3. Nor is there any possible aspect of the case, in which it was permissible for the State to prove that the defendant was accused of the seduction, and, with ■ knowledge of the accusation, sought an adjustment with the prosecuting witness. The fact of the accusation rested in mere hearsay, and the proposition for an adjustment was not an admission or confession of guilt. Take it in its largest significance, and it manifested no more than a willingness to compound a criminal accusation for the purpose of avoiding the publicity, odium, and vexation of a prosecution, which is not inconsistent with a consciousness of innocence. There is in criminal cases no species of evidence, the introduction of which is so restrained and guarded, as the admissions or confessions of the accused, whether expressed in. words, or to be implied from conduct. In civil cases, the rule of law is, that admissions, made with a view of an amicable adjustment, or compromise, are not, as evidence, admissible to affect the party making them. A party knowing himself to be suspected, or to be accused of a criminal offense, negotiating for the supioression of a prosecution, can not expect that the negotiations will be favored, as negotiations for an amicable adjustment of a civil controversy are favored. But such negotiations, not embodying, or intended to embody a distinct admission or confession of guilt, which, free from the influence of hope or fear, it is not probable the accused would make, ■ought not to be perverted into evidence against him, inviting ¡the jury to infer from them an admission or a consciousness of' crime.

4. The essential elements of the offense, as it is described fey the statute, are, first, the woman must be unmarried; second, she must be induced toa surrender of her chastity^ by a promise •ef marriage, or by the arts or deceptions of the"man. These are the elements of the offense, and the presence of each is nece.ssary to a conviction. “Seduce,” or “seduction,” within the meaning of the statute, imports illicit sexual connection ; :and until that is committed, the statutory offense is not committed. The word “seduce,” as found in the statute, imports not only illicit sexual intercourse, but it imports also a surrender ■of chastity; a surrender of the woman’s personal virtue. The statute is for the protection of the chastity of unmarried women,- and the existence of the virtue at the time of the intercourse is a necessary ingredient of the offense ; for, as has been often said, the woman who has lost her chastity, the prostitute, may he the victim of rape, but is not the subject of •seduction. By this is not, however, intended that the woman, who may have at some time fallen, can not be the subject of seduction. That may be true, and there may be reformation; -and, at the time she yields to the man’s embraces, she may have the virtue of chastity, not in the high degree of the woman who has not strayed, but yet, within the meaning of the statute, entitling her to its protection. — State v. Carron, 18 Iowa, 372; Carpenter v. People, 8 Barb. 603; State v. Timmens, 4 Minn. 325; People v. Clark, 33 Mich. 112. The offense is shocking to the moral sense, justly pirovokes the highest indignation, and. is deserving of the severest punishment. But the observations of Lord Hale in reference to accusations of rape are peculiarly ■applicable, and ought to be remembered — the áccusation is •easily made, hard to be proved, and harder to be defended and •disproved by the party accused, though ever so innocent. Lienee, the statute, in express terms, declares that neither an indictment, nor a conviction shall be had on the uncorroborated testimony of the woman.

The offense is strictly statutory.. In the absence of force or conspiracy, when “ only the guile of a single person is resorted to,” it is not at common law indictable. — Bish. on Stat. Grimes, ,§ 629. In many, if not- all of the States, statutes have been enacted, creating .and defining the offense, varying and differing in its elements,, but generally, if not uniformly, prohibiting a conviction upon the unaided or uncorroborated evidence of the woman. The courts are not .agreed in regard to the manner ■and extent of corroboration necessary to a conviction. Some require only corroboratory evidence of some material fact or part of the case, sufficient to satisfy the jury that tlie woman is worthy of credibility. — Boyce v. People, 55 N. Y. 644. Other courts, and the larger in number, require that the confirmatory or corroboratory evidence shall extend to every material fact, which is a necessary element of the offense — the promise to-marry, or the art or deception practiced to accomplish the illicit intercourse, and that the intercourse was the result of such promise, or of such art or deception. — State v. Timmens, 4 Minn. 425; Andre v. State, 5 Iowa, 389; State v. Painter, 50 Ib. 317; Zabriskie v. State, 43 N. J. 640; Kenyon v. People, 26 N. Y. 203. This, I am of opinion, is the proper construction of the statute before us; it means that there must be, independent of the evidence of the woman, proof of such facts- and circumstances as tend to show the commission of the-offense; less will not meet the words or spirit of the statute.. The confirmatory evidence may not be direct and positive; it may be circumstantial, consisting of such facts as usually attend upon, or are the companions of the main facts to be proved,, and which strengthen the evidence of the woman. And these circumstances must tend to connect the defendant with the-commission of the offense; they must point and single him out from other men. Mere acquaintance, and mere opportunity for sexual intercourse do not furnish corroborating evidence of' seduction ; for sexual intercourse is one only of the elements of the offense. The evidence must go further, and must tend reasonably to prove, not only the sexual intercourse, but that it was accomplished by the use of some of the means specified in the statute. And if, as in the present case, a promise of marriage is relied upon as the moving cause for the criminal connection, and in corroboration of the evidence of the woman, it is sought to deduce such promise from circumstances, the circumstances ought to be such as usually accompany an engagement of marriage, not attentions which are consistent only with the pursuit of lust. — State v. Painter, 50 Iowa, 317; State v. Araah, 55 Ib. 258; Rice v. Commonwealth, 100 Penn. St. 28. A majority of the court do not, however, concur in this view. They adhere to the rule laid down in Oionningham v. State, at present term [ante, p. 51,], and it must be regarded as settled that the corroboratory evidence is sufficient, if it extends to a material fact, and satisfies the jury the woman is worthy of credit. As that case lias passed beyond the control of the court, I am not averse to this conclusion.

5. While the pre-existing chastity of the woman is, by all authority, regarded as a necessary element of the offense, there is contrariety of opinion, whether it is an affirmative fact to be-proved, or of which, in the first instance, evidence must be given by the State, as must be the case in reference to all material facts, generally ; or whether it is to be presumed, until there is evidence to the contrary. The words and history of the ' statute constrain us to the conclusion, that until there is evidence to the contrary, the chastity of the woman must be presumed. Originally, the statute contained no words expressly referring to the personal virtue or chastity of the woman. They were introduced by the amendatory statute, and in fact form the whole subject of the amendment. The expression, it will be observed, is, “ no conviction shall be had under this section, if, on the trial, it is proved that such female was, at the time of the alleged offense, unchaste.” It is only in the event that there is upon the trial evidence of a want of chastity, that a conviction is prohibited ; there is no prohibition of a conviction in the absence of evidence tending to show chastity.- The prohibition of conviction is, in the event the woman is unchaste at the time of the criminal connection. In this respect, the statute differs from the statutes of some of the States, which refer only to reputation, requiring that she must be of previous good repute for chastity. It more nearly resembles other statutes which employ the expression “ previous chaste character,” and which are construed as referring to actual personal virtue in distinction to reputation. — Carpenter v. People, 8 Barb. 603; Kenyon v. People, 26 N. Y. 203; Andre v. State, 5 Iowa, 389; State v. Curran, 51 Iowa, 112; People v. Clark, 33 Mich. 112. It is the virtue of the woman at the time of the seduction, that is the material fact, and it is a fact, the existence of which the jury must determine from the evidence of her prior conduct. The want of chastity is as essentially directed to the essence of guilt, as is the absence of the illicit, intercourse, or the absence of the inducements to such intercourse specified in the statute. If there be not contrary evidence, chastity will be presumed in obedience to the statute. But when there is contrary evidence, the final question is, whether the guilt of the accused is fully proved, and, then, a reasonable doubt of the chastity of the woman is as fatal to a conviction, as is the existence of such doubt in reference to any other material fact.

We do not deem.it necessary now, as for the errors already pointed out the judgment must be reversed, to prolong this opinion by applying these views to the rulings oi the circuit court in the giving or refusal of instructions, which are the matters of exception. Whatever of error may be in them can be obviated upon another trial.

The judgment is reversed and the cause remanded; but the appellant must remain in custody until discharged by due course of law.