| N.Y. Sup. Ct. | Sep 3, 1850
The statute under which the defendant was indicted and convicted, declared an act to be a misdemeanor and highly penal, which was not recognized by the common law as a crime against the public. By all rules of construing statutes of that character, it should not be held to extend to cases which are not clearly within its meaning and objects. The statute is in the following language:
“Any person who shall inveigle, entice or take away any unmarried female of previous chaste character, under the age of
Upon the conclusion of the evidence, the court below charged the jury, “ that the term 1 take away,’ used in the act in question, does not mean an actual manual caption, or personal assistance, or forcibly; but it must be construed in connection with the other parts of the section and with reference to the words ‘inveigle’ and ‘entice’ which immediately precede it. That a person may come within the act who in any manner-aids or assists the female in going' away, even if she persuades him to assist, and he does so for the purposes mentioned in the act, he is within the meaning of the term ‘ take away.’ ”
The offence described in the statute is the inveigling, enticing or taking away of an unmarried female, &c. or aiding or assisting therein. It is in the same section called “ abduction.” In the legal sense, that word signifies the act of taking and carrying away of a child, ward, wife, See. either by fraud, persuasion, or open violence. In one view, the case would be within the statute, where the party accused aids or assists in the abduction of the female, for the purpose of her prostitution, although she consents thereto, or even where she persuades him to take her away. He might, in such case, aid or assist in the abduction as really and actually, as if she should be taken away against her will; and he cannot excuse himself by the plea that he was persuaded to commit the offence.
These remarks, however, must be understood with this important qualification; that the aid or assistance by the person
It does not appear by the bill of exceptions, that any one besides the defendant and the female in question, was engaged in the supposed abduction in this case. It appears that evidence was given, on the part of the defendant, to show that when she left her father’s house in June, 1849, she went voluntarily, and not at the instance or request of the defendant. This might all be, and the defendant be guilty of her abduction by his previous acts of inveigling and enticing. Evidence was given to show that when she left her father's house, at the time mentioned, it was by arrangement with the defendant. If the jury so believed, and that her consent to go was procured by the defendant in the manner and for the purpose mentioned, the indictment was sustained in respect to the defendant’s instrumentality in her abduction. So far as the charge on this point is applicable to the proof in the case, I think it unobjectionable. If the language was unguarded, or the views of the court even erroneous upon an abstract question, it can not be a ground for reversing the judgment.
With respect to the character which the female must possess, in order to constitute the statute offence by the individual taking her away, the court below advised the jury that the term “ pre
Evidence had been given to show that the female in question had illicit intercourse with a young man .in the year 1846, and before her acquaintance with the defendant. Under the charge given them the jury would have been justified, as far as respects this particular question, in convicting the defendant, although they believed, from the evidence, that the female had been in the constant habit of unchaste intercourse, without the concurrence of the defendant, up to the time of the alledged abduction; provided it had not become sufficiently known to affect her reputation. We think the words referred to, do mean actual personal virtue—that the female must be actually chaste and pure in conduct and principle, up to the time of the commission of the offence. Not that this must be the case up to the moment of taking her away for the purpose mentioned; but that it must be so up to the commencement of the acts of the party accused, done with the purpose indicated, and which result in such taking away. The process of inveigling and enticing may be the work of time, and when commenced, the female must be of chaste character in the sense above defined. The word “ previous” in this connection, must be understood to mean immediately previous, or to refer to a period terminating immediately previous, to the commencement of the guilty conduct of the defendant. If the female has previously fallen from virtue, but has subse
The court below, among other things, instructed the jury that in regard to the purposes for which the female must be taken away, the statute means the same as though the words “ for the purpose of prostitution” only had been used, without the addition of the words “ at a house of ill fame or assignation, or elsewhere,” the term “ or elsewhere” neutralizing the effect of the terms “ at a house of ill fame or assignation;” and leaving the effect of the law the same as though the expression “ at a house of ill fame, assignation, or elsewhere,” had not been used.
This view, as to the interpretation of that part of the statute to which it relates, may be strictly correct, and yet I can hardly agree with the learned court by whom it was pronounced, without some qualification and explanation. I think it will hardly do to say that the words “ or elsewhere,” have the effect to neutralize entirely the previous words, “ at a house of ill fame or assignation.” I think the latter expression has an important meaning, and serves as a key to the evils against which the act was intended to operate.' It may be that the act should receive the same interpretation as if the indication as to where the purposed prostitution was to take place, had been omitted.
By the word prostitution, in its most general sense, is understood, the act of setting one’s self to sale, or of devoting to infamous purposes, what is in one’s power; as, the prostitution of talents or abilities; the prostitution of the press, <fcc. In a more restricted sense, the word means, the act or practice of a female" offering her body to an indiscriminate intercourse with men; the common lewdness of a female. The introduction of the words “ at a house of ill fame or assignation,” in the connection where they are found in the statute, leaves no doubt as to what kind of prostitution was intended. And although, as before suggested, the meaning would have been sufficiently plain without them, yet it was well to introduce them in order to prevent cavil or doubt. The statute, by declaring, that in order to constitute the offence, the female must be taken away, «fee. for the purpose of prostitution, at a house of ill fame, assignation or elsewhere, has plainly indicated that the prostitution which the legislature had in view, was that of the female to the lustful appetites of men at any place where prostitution of the character common at houses of ill fame or assignation, is practised.
I have bestowed more attention upon this branch of the charge than it would otherwise have demanded, for the reason that I regard it the starting point of error in the- court below, which led to a misconstruction of the statute, and resulted in the conviction of the defendant. The jury were instructed that they were to judge in regard to the meaning of the term “ prostitution,” and that they were to give to the expression “ for the purpose of prostitution,” its proper signification. In this, the court cast upon the jury a responsibility which did not appertain to them. The idea, which has become somewhat current.
The court below, so far as they intimated an opinion as to the meaning of the word “ prostitution,” as used in the act, gave the jury to understand, that it was not necessarily the indiscriminate intercourse of the female with men, but that it might be understood as equivalent to a state of concubinage, or the condition of a kept mistress. These terms are not employed in the charge, but its language can leave no other impression upon the mind. The jury was left at liberty to understand the word in that sense. This we think was the great error of the court below.
All lexicographers agree substantially with Mr. Webster in his definitions of the word prostitution, as heretofore stated. It is uniformly defined as being the acts or practice of a female offering her body to an indiscriminate intercourse with men. A prostitute, is a female given to indiscriminate lewdness; a strumpet. As a verb, its definition is to offer freely to a lewd use, or to indiscriminate lewdness. As an adjective, it means openly devoted to lewdness; sold to wickedness or infamous practices.
We are entirely clear that by the expression in question, as used in the statute, it was intended that in order to constitute the offence thereby created, the abduction of the female must be for the purpose of her indiscriminate meretricious commerce with men. That such must be the case to make her a prostitute, or her conduct prostitution, within the act.
Other offences against virtue and chastity have other names which are well understood. It is not every act of illicit intercourse between the sexes that amounts to prostitution. A female may live in a state of illicit carnal intercourse with a man for years, without becoming a prostitute, or her conduct prostitution, in the sense of this law, and without being amenable to any human law.
We think the conviction and judgment should be reversed, and a new trial granted.