71 Miss. 805 | Miss. | 1894
Lead Opinion
delivered the opinion of the court.
The action of the trial court in overruling the demurrer to the indictment is brought under review by the first assignment of error. The demurrer raises two questions, and we examine them in their order: (1) The indictment does not charge that the woman alleged to have been seduced was of previous chaste character; (2) the indictment does not charge that, at the time of the alleged seduction under promise of marriage, the woman was unmarried.
On the first proposition it is to be said that § 1298, code 1892, prescribes the punishment for seduction of any woman, or female child over the age of sixteen years, by means of pretended marriage or of false promise of marriage. The object is to protect the chastity of women and children above sixteen years of age (seductions in other cases being provided for in §§ 1002, 1004) from attack by false marriages or -false promises of marriage. The statute, ex vi termini, is to be confined to the abuse of unmarried females and unmarried females of previous chaste character. JBut the previous chastity of the female said to have been seduced need be neither alleged nor proved. The presumptions of law spring from and rest upon the general knowledge and universal experience of mankind. In the multitudinous and varying
The adjudged cases and authorities holding the contrary view will be found, on critical examination, to stand on one or the other of two grounds, or on both, viz.: The statutes creating and defining the crime of seduction in some of the states employ the words, “ previous chaste character,’-’ or similar words, and so are supposed to requii’e those words in indictments for such offenses. This fact appears in all, or nearly all, the reported cases which we have examined in which this identical question was passed upon. This is notably true of the early and unsatisfactory case of West v. State, 1 Wis., 186, which is the foundation and perpetual reference of the later cases holding that chastity must be alleged and proved. But in these later cases, which follow the early Wisconsin decision, we shall discover, on thorough inspection of the various statutes of the several states on which the indictments founded thereon were examined, and the sufficiency of their averments passed upon, that the words “previous chaste character,” or other like .ones, are uniformly to be found, as we now remember the results of our extensive and protracted research on this point. Said that eminent jurist, Cooley, J., speaking for the supreme court of Michigan, in People v. Brewer, 27 Mich., 134, commenting on the early Wisconsin case of West v. State, hereinbefore referred to : “ The case of West . . . was decided upon the phraseology of the Wisconsin statute, which was thought to make the‘previous chaste character’ of the person seduced an ingredient in the offeuse. Our statute [Michigan] is very simple, and merely provides that, ‘if any man shall seduce and debauch any unmarried woman, he shall be punished,”’etc. § 7697, L. 1871.
The Wisconsin court itself, in the opinion in West’s case,
Counsel for the accused also cite us to 21 Am. & Eng. Enc.
In Polk v. State, 40 Ark., 482, the prisoner was indicted under a statute which made penal the “ obtaining carnal knowledge of any female by virtue of any feigned or pretended marriage, or of any false or feigned promise of marriage.” The question oh the indictment arose thus, as is stated-in the opinion of the court: “ The defendant moved in •arrest of judgment, because the indictment only stated the parties were past the age of puberty, and did not state that they were of full age, and so able to make valid and binding promises to marry without consent of parents or guardian» nor even that they were of sufficient age to be capable in law of ■contracting marriage. This objection is frivolous.” It thus appears that the necessity for the averment and proof of previous chaste character was not raised or passed upon in any rulings in which that point was directly involved. It is worthy of remembrance, however, that fin considering the proper method of impeaching the previous chaste character of the female alleged to have been seduced, the court used this language : “ Since, in the female sex, chastity is the rule and want of the exception, the presumption is in favor of virtue. No evidence is required to establish it in the first instance, and the burden is on the defendant, if he would
It remains to consider the other ground of contention on this point, which is that the previous chastity must be averred in the indictment and established in the evidence; otherwise the presumption of the defendant’s innocence will •be overthrown by the presumption of the woman’s purity. ‘To put it otherwise, the strength of the presumption of the ■defendant’s innocence cannot be weakened by any counter-presumption of womanly virtue. This same view was ably urged upon our attention in the case of Hemingway v. The State, 68 Miss., 371. We need look no farther than the opinion we then delivered in order to silence the present contention : “ By this second proposition we suppose it is meant to be said that the presumption of innocence is affected or destroyed in part by the legal presumption of the correctness of'the records, and that this favored presumption of innocence cannot be met by another presumption, but must be destroyed by positive proof. This contention rests upon the
There was no attempt to show .any want of virtue iii the unhappy girl in the case at bar before she fell a victim to the devilish lust of the prisoner. Undeniably, he robbed his victim of the jewel of her virginal purity, and it is with scoundrelly grace only that he can invoke the vanished figment of the legal presumption of his innocence, insisting that the well-founded and universal presumption of maidenly modesty and womanly virtue shall be overlooked and denied the wretched creature whose character he has. put to death.
As to the second ground of demurrer, it is sufficient to say that we are of opinion that the indictment reasonably shows that the female seduced was unmarried. It is to be regretted that the pleader did not distinctly and positively aver that the female was unmarried; but she is twice addressed by ihe prefix to her own proper name which is solely and universally applied to an unmarried woman, and she is described
That the unfortunate girl was of previous chaste character the law presumes, and this legal presumption it Avas not incumbent upon the state to aver or prove primarily. We have no doubt from the pleading and the evidence that she Avas unmarried, and we are therefore of opinion that the demurrer Avas properly overruled.
The second assignment of error draws in review the action of the court beloAV in permitting the unhappy creature seduced to tell the jury that she yielded her person to her loAmr’s embrace because of his promise of marriage and her blind reliance thereon. We approve the action of the court, for, in the very nature of things, it will be impossible, generally, perhaps ever, to make this evidence if the ruined
The third assignment challenges the propriety of the trial courts permitting the female seduced to testify as to acts of sexual intercourse between herself and the prisoner, and as to the’birth of her child subsequent to her seduction. There was no controversy as to these facts. The repeated acts of' sexual intercourse were testified to by the accused, and the birth of the child was not disputed. The evidence, we think, was incompetent, either as connecting accused with the crime of the seduction or as corroborating the evidence of the female seduced. But we are unable to see in what manner it could have excited the minds of the jury against the prisoner. Confessedly, after having first yielded her person to her betrayer, and after the revolting crime of her seduction had been accomplished, she had sexual intercourse many, many times with her seducer, and, confessedly also, the child afterwards born was not the fruit of the first intercourse had when she fell from the path of virtue. We can readily see how this might have prejudiced the victim, who thus continued to yield herself to his embraces, by causing the jury to pause and hesitate in determining whether she was the real owner of a previous chaste character when she took this alleged first step downward on the way to irretrievable shame. How it could have roused the feelings of a jury against the man we are at a loss to conceive. The error is not, in this case, reversible error.
On the fourth assignment, it is necessary only to say that
The second instruction, of which complaint is made in the fifth assignment of error, is not open to the criticisms made by counsel. It does not authorize a conviction on the uncorroborated evidence of the woman seduced; it is silent on that point, but, more than once and plainly, the jury was instructed that, in order to convict, the evidence of the woman seduced must be corroborated. This instruction is free from the fatal vice mistakenly supposed by counsel to inhere in it. By it, the jury were informed that, if their minds and consciences were satisfied by the evidence that the sexual intercourse was brought about by virtue of a promise of marriage made by defendant, before or at the time of the alleged intercourse, and that, if this satisfaction of minds and consciences was produced by conscientious belief of the evidence, then the jury believed beyond all reasonable doubt, and they should convict, although they might believe from the evidence, further, that the woman seduced afterwards (after her fall) yielded herself to the defendant’s embraces to gratify her own passions — her own aroused and now uncontrolled passions — and was not now, since her seduction and fall from virtue, a woman of chaste character. Whether the unhappy wretch continued to wallow in the mire and filth of personal deprav-. ity, to which defendant’s revolting villainy had reduced her, in no way affected his guilt or her previous purity, if these had been established satisfactorily.
The third instruction for the state is neither vague nor uncertain. By this charge the jury were simply informed, at the state’s request, that corroboration of the testimony of the female seduced was necessary before conviction could be had. This was true, and if the accused desired to have de-.
The sixth assignment goes to the court’s action in refusing certain charges for the defendant. The first instruction refused is clearly erroneous. The subsequent acts of intercourse it was sought to have the court tell the jury overcame the presumption of previous chaste character. This was not true in and of itself. The subsequent acts of sexual intercourse were matters to be carefully pond'ered by the jury, and their character and value were fair subjects for argumentation before the jury, but nothing more. To instruct the jury that these subsequent acts of illicit personal intercourse had overcome the legal presumption of the previous chaste character of the woman, would have been to charge upon the weight of the evidence, and, in effect, take the case from the jury.
The second, third and fourth instructions refused were properly refused. The second instruction asked the court to direct the jury that it was the duty of the state to prove the character of the female seduced to have been chaste prior to the act of intercourse which accomplished her seduction. We have already seen that this is not sound. The third refused instruction is improper, because without evidence to support it. The fourth refused instruction is manifestly erroneous, for the reason just given. It was unsupported by the evidence. There is no testimony, nor hint of evidence, that this seduced woman “had already fallen, and was not, at the time, pursuing the path of virtue,” and the instruction which assumes as proved that which is not proved would be monstrous.
The fifth refused instruction was also properly rejected by the court below. By it, the prisoner sought to have the jury advised that “all her testimony must be corroborated by
We have here a fresh exemplification of the truth of the inspired maxim : “ The way of the transgressor is hard.” But if character is to be held safe from infamous attack, and the law for its security is to be maintained and honored, this transgressor should be made to feel just punishment in all its fullness and with inexorable certainty.
Affirmed.
Concurrence Opinion
specially concurring.
I concur in the result announced by my brother Woods, but I am not prepared to decide that our statute is applicable only in cases in which the female is of previous chaste character. It is true the codifiers have affixed to the statute the head-line “ Seduction of female over age of sixteen by frauds,” etc., which is perhaps evidence of their construction. It is also true that the statute declares that “the testimony of the female seduced alone shall not be sufficient to warrant a conviction.” But the statute appears to me to include all cases in which carnal knowledge is obtained by the means named. It declares that, “if any person shall obtain carnal knowledge of any woman, or female child over the. age of sixteen years, by virtue of any feigned or pretended marriage or any false or feigned promise of marriage, he shall, upon conviction, be imprisoned in the penitentiary not more than five years; but the testimony of the female seduced alone shall not be sufficient to warrant a conviction.”
If the person indicted has, by the means condemned by the statute, obtained carnal knowledge of any woman, or female child over the age of sixteen years, he is, in my opinion, subject to conviction and punishment.
delivered the following opinion :
It is not my understanding that there is any difference of opinion among the members of the court as to § 1298, code of 1892, or the decision of this case. All agree that the indictment need not aver that the woman was of previous chaste character, and that it is not necessary to prove that she was. It seems clear that, if carnal knowledge was obtained of any woman, or female child over the age of sixteen years, by virtue of any feigned or pretended marriage, or any false or feigned promise of marriage, the fact that the woman had before yielded her person to another or others, however suggestive of her not having been deceived and misled by the accused, would not free him from the consequence of his act.