King v. State, 83 So. 164

83 So. 164 | Miss. | 1919

Lead Opinion

Sykes, J.,

delivered the opinion of the court.

Hulon King was indicted and convicted in the circuit court of Covington county of the crime of seduction, and sentenced to a term of two years in the penitentiary. From which judgment this appeal is prosecuted. The indictment was drawn under section 1081, Code of 1906 (Section 808, Hemingway’s Code). Omitting the formal parts, it alleges that: “Hulon King an unmarried man, on the - day of February, 1919, in Covington county, aforesaid, did then and there unlawfully, wilfully, and felonious seduce and have illicit intercourse with Lillie Cook, a female child, under the age of eighteen years, of previous chaste character.” • .

This section of the Code provides that: “The testimony of the female seduced alone shall not be sufficient for conviction.”

The opinion of the court in the case of Carlisle v. State, 73 Miss. 387, 19 So. 207, quotes with approval from the opinion of the court in'the case of State v. Bierce, 27 Conn. 319, the definition of the word “seduce,” as used in a similar statute as follows:

“The word ‘seduce,’ although a general term and having a variety of meaning according to the subject to which it is applied, has, when it is used with reference to the conduct of a man towards a female, a precise and determinate signification, and is universally understood to mean an enticement of her on' his part to the surrender of her chastity, by means of some art,' influence, promise, or deception calculated to accomplish that object, and to include the yielding of her person to him, as much as if it was expressly stated. The word ‘seduction,’ .used in reference to a man’s conduct towards a female, ex vi termini, implies sexual intercourse between them.” Bishop on Statutory Crimes, section 645.

In this case it is the contention of the state that the appellant persuaded tlie girl to have sexual intercourse under a promise of marriage.

This court, in dealing with this section and other kindred sections of the Code, has repeatedly held that it is necessary that the testimony of the female seduced be corroborated by other evidence upon the three essential ingredients of the crime; namely, in this case promise of marriage, the act of sexual intercourse, and the previous chaste character of the prosecutrix. Lewis v. State, 111 Miss. 833, 72 So. 241; Hatton v. State, 92 Miss. 63, 46 So. 708; Id., 95 Miss. 646, 49 So. 514; Carter v. State, 99 Miss. 207, 54 So. 805; Long v. State, 100 Miss. 15, 56 So. 185.

It is the contention of the appellant: First, that the testimony of the prosecutrix herself showed that she was not of previous chaste character at the time she claims to have been seduced by the. appellant. This contention is based upon some parts of tbe testimony of this witness wherein she stated on cross-examination in effect that she was seduced in February, but also that she had had intercourse with appellant in January. In other parts of her testimony, in her examination m chief, however, she expressly stated that appellant promised to marry her both before and after she had intercourse with him. Without reciting her testimony in full, suffice it to say that the jury had a right to believe from her testimony that the promise of marriage was made in January before the first act of intercourse. They could very well have believed from her testimony that her idea of what seduction means was when she became pregnant. It was for the jury to say and consider this testimony and reconcile it if possible. It is well settled that there can be only one seduction, and that each successive act of intercourse is not an offense under this statute. Hatton v. State, 92 Miss. 653, 46 So. 708; Id., 95 Miss. 546, 49 So. 514.

The jury in this case must believe from the testimony before a conviction can be had that the promise of marriage was made by appellant to prosecutrix, and this caused her to yield her person to him. Hatton v. State, svpra. They must further believe that at this time the prosecutrix was of previous chaste character.

The appellant contends that he should have been discharged in the lower court after the state rested its case, because there was no testimony corroborative of that of the prosecutrix as to the promise of marriage, the act of intercourse, and the previous chaste character of the prosecutrix. The mother of the prosecutrix, however, testified that the appellant told her the prosecutrix “was hard to persuade, but he did persuade her over ... . • and also that he said he promised to marry her.” This testimony alone was sufficient to corroborate the prosecutrix upon the promise of marriage and the act of intercourse. As to the previous chaste character, the attorney for the appellant himself asked the mother of the prosecutrix on cross-examination whether or not she was a lewd girl previous to the time of the alleged seduction, to which the witness replied that she was not. The girl testified to her previous chastity. We think this testimony was a sufficient corroboration on this point.

The state further introduced two witnesses in rebuttal, who testified, when asked if they knew the general reputation for chastity of the prosecutrix, that they had never heard her reputation questioned until her conduct here in'question became known in a prosecution under this statute the burden of proof rests upon the state to prove the three essential ingredients of this crime, and in proving the actual chastity of the prosecutrix it is competent to prove her general reputation for chastity, as one of the elements of proof of actual chastity. In the case of Carroll v. State, 74 Miss. 688, on the bottom of page 690, 22 So. 295, 60 Am. St. Rep. 539, the opinion of the court quotes from State v. Lockerby, 50 Minn. 363, 52 N. W. 958, 36 Am. St. Rep. 656 as follows: .

“General reputation must he regarded as having some relation to actual character, and goes directly to the question of the probability of her being chaste.”

It is also assigned as error that the mother of the prosecutrix was permitted to testify over objection that the prosecutrix stated while in travail that appellant was the father of her child. The admissibility of this testimony was error. This character of testimony is admissible in a bastardy proceeding where the paternity of a child is a material issue. Johnson v. Walker, 86 Miss. 757, 39 So. 49, 1 L. R. A. (N. S.) 470, 109 Am. St. Rep. 733. In this case,'however, if was not contended by the prosecutrix that she became pregnant as a result of the first act of intercourse, but that her pregnancy was caused several weeks later. Ferguson v. State, 71 Miss. 805, 15 So. 66, 42 Am. St. Rep. 492. Upon this error alone, however, we would not he disposed to reverse the case.

The facts relating to the assignment of error upon which this case must be reversed as shown by a special bill of exceptions, in substance, are as follows: While the attorney for appellant was arguing the case to the jury, claiming that under the testimony of the prosecutrix herself she was not of previous chaste character when she claimed to have been seduced, because she had previously had intercourse with the appellant in January and for this reason the jury should return a verdict of not guilty, one of counsel for the state without the knowledge of defendant’s counsel asked and Avas granted by the court the following instruction :

‘ ‘ The court instructs the jury for the state 'that it is immaterial whether the intercourse charged was in-January or February, 1918. If the jury believe beyond a reasonable doubt from the evidence that the defendant did have intercourse with prosecutrix at a time she was of previous chaste character, at any time within two years prior to the date named in the indictment as charged in the indictment, you should find defendant guilty.”

Counsel for the appellant Avas ignorant of the granting of this instruction until the concluding argument Avas being made for the state, Avhen this instruction AAras read to the jury, and counsel remarked that, “The court has given you its instruction for the state to ansAA-er the argument of counsel for the defendant, so you gentlemen may not pay any attention to Avhat he said.” Objection was immediately made to this instruction being read to the jury, which was overruled. The granting of any instruction during the argument to the jury, and especially when opposing counsel will have no opportunity to refer to same in his argument, has been expressly condemned by this court in the opinion in the case of Montgomery v. State, 85 Miss. 330, 37 So. 835. The instruction granted in the Montgomery Case was practically under similar circumstances as those here occurring. In that case the court said that where the charge was clearly right, and not so adroitly prepared as to possibly mislead the jury, it would not reverse for a deviation from it.

The above instruction is not clearly right, and, to say the least, is misleading. The state was only granted two instructions. The other instruction was correct. The instruction we are now considering, however, in effect authorizes the jury to convict appellant if they believe he had intercourse with prosecutrix at a time when she was of previous chaste character, within two years prior to the date named in the indictment. The statement “as charged in the indictment” either means nothing, or is misleading. This instruction should have contained the sine qua non of the offense, namely, that the intercourse was the result of a promise of marriage, or should have used the word “seduced” to let the jury understand that the seduction was the question before them, and not simply the intercourse. We therefore hold that this instruction was granted at an improper time, and, further, that it is an improper instruction, and should not have been granted.

The case is a very' close one on its facts. Five disinterested young men testified to the lewd character of the prosecutrix. Four of them testified that they had had several acts of sexual intercourse with her prior to and about the time she claims to have been seduced. The corroborating testimony in the case, though sufficient to sustain the verdict, is one of the strongest character. This being true, we think the defendant was made to carry more of a burden than he should in the manner in which it was given and in the wording of this incorrect instruction.

Reversed and remanded.

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Concurrence Opinion

Ethridge, J.

(specially concurring).

I base my concurrence in reversal entirely upon the fact that the instruction criticized in the majority opinion was given without knowledge of counsel for the defendant until after he had closed his argument. While the court may give the instruction during the argument or at any time before the jury retires, the attention of counsel for the opposing side should be promptly called to the giving of the instruction, and he should be given opportunity to procure a counter instruction and to reshape his argument, if necessary. I do not think the instruction given is erroneous or ambiguous. It might be more explicitly phrased, but if the instruction had been given prior to the argument, or if the attention of counsel had been called to it before he concluded his argument, and he given an opportunity to answer it and to .procure other instructions if he deemed it advisable, I should unhesitatingly vote for the case to be affirmed.

In the case at bar the only element of the crime charged which was disputed by the defendant was with reference to her previous chastity, and the instruction given required the jury to find that this existed beyond a reasonable doubt. The "phrase “as charged in the indictment” necessarily means the elements of crime must be proven that are charged in the indictment. I think the criticism of the instruction is too critical, and I fail to see how any man with common sense could be misled by this instruction, especially when it is considered with all the other instructions in the case, as it-must be.