72 Miss. 128 | Miss. | 1894
Lead Opinion
delivered the opinion of the court.
We cannot treat the motion to quash as a demurrer. The language of §§ 1354, 1355, code 1892, is plain, and binds us. If a demurrer had been interposed below, it should have been sustained, and the indictment quashed, unless amended; for the averment, which ought to be clearly set forth in every indictment under § 1298, code 1892 — that the defendant made the promise to the woman of whom he had the carnal knowledge— whilst set forth here in such wise as to prevent objection after verdict, is not set forth with such clearness as to sustain the indictment, against objection properly taken before verdict by demurrer. But, whilst we cannot treat the motion to quash as a demurrer, yet if the indictment omits altogether any averment that the defendant made the promise to the woman of whom he had carnal knowledge, which averment we hold to be essential in such an indictment, there would lie a total omission of a matter of substance — of an element of the very essence of the offense — and the indictment would be void as charging no offense, and the judgment and sentence of the law. could not follow upon a conviction had under it; and, a matter of constitutional right being thus involved, the point could be raised here, and § 1341, code 1892, would not apply, as held in Lewis v. State, 49 Miss., 356, and Newcomb v. State, 37 Miss., 397. The whole pith of the matter is put by Chief Justice Shaw (23 Pickering, 275) in this language, approved by this court in Sullivan v. State, 67 Miss, 351: “ The verdict of a. jury does nothing more than verify the facts charged; and, if these do not show the party guilty, he cannot be considered as having-violated the statute. ’ ’ There can be no doubt that it is of the essence of the offense denounced by § 1298, code 1892, that the defendant should make a false or feigned promise of marriage to the woman in the case, and that the indictment should aver
In Callahan v. State, 63 Ind., 199; Cheney v. State, 36 Ark., 75; Grant v. State, 4 Parker’s Crim. Rep., 528 (which see specially); Cole v. State, 40 Texas, 148; Bryan v. State, 34 Kan., 68, and many others, it is expressly averred that the carnal knoAvledge was obtained by virtue of a promise made by the defendant to the woman in the case. The indictment in Ferguson v. State, 71 Miss., 805, follows Mr. Bishop’s form exactly, and this book is presumably in the library of every district attorney in the state. The allegation in this indictment does not use the language ‘ ‘ promise previously made by said defendant to said Katie Douglass, ’ ’ but it does allege that defendant had carnal knowledge of her ‘ ‘ by virtue of a false or feigned promise of marriage.” We think this is a very defective allegation in the particular under consideration; but still there is, by necessary implication, the allegation that the promise was one made by defendant to Katie Douglass. No other construction not too fanciful to serve as the basis of a judgment'of reversal, can be made. " When the description of the offense, taking into consideration its nature, and the natural and legal import of the terms used in designating it, is such as to convey a certain, clear and full idea of the offense charged, it is sufficient,” says this court in' Jesse v. State, 28 Miss., 109. There can be no sound and satisfactory meaning given to this allegation, looking to the whole indictment, other than that the promise in question was one made by the defendant to Katie Douglass, defective as the allegation manifestly is. In Bryan v. State, 34 Kan., 68, the indictment did not, in terms, charge that the woman seduced was a single woman, but it did charge that she was of the age of only seventeen years. The court
We hold in this case that the allegation is very defectively made, but is set out by reasonable implication in such sense and with such sufficiency that, after verdict, it is aided by § 1341, code 1892. See note one to 1 Saunders’ Reports, p. 227.
But it is insisted that the court below erred in granting the instruction given for the state. We think this instruction, applied to the facts of this case, squarely presents the question whether the woman should be of previous chaste character under this statute. We have found, after careful examination, but two statutes identical with ours, .and those are the statutes of Arkansas and-Texas; and, in the case of Polk v. State, 40 Ark., 482, a case strikingly like this in its facts, speaking of testimony offered by defendant to show previous unchaste character, which had been excluded by the court below, the court says: “In every prosecution for seduction, the character of the seduced female is involved in the issue. . . It is not, indeed, expressed in our statute, as it is in the statute of New York and of some of the other states, that the woman should have been of previous chaste character, but it is plainly implied. The legislature never intended to send a man to the penitentiary for having had illicit connection with a prostitute or a woman of easy virtue, where she had consented, even under a promise of marriage.” And the supreme court of Michigan, construing a statute 'identical with ours in leaving out the words ‘ ‘ of pre
In an elaborate note in 87 Am. Dec., p. 408, it is declared that “the evident design of the laws on this subject is to protect virtuous unmarried females.' ’ The Texas statute, practically identical with ours, also omits the words " of previous chaste character. ’ ’ But the supreme court of that state, in two well-considered cases, reported in 25 Am. St. Rep., p. 738, and 37 Am. St. Rep., 834, expressly held that the previous chaste character is involved in the very constitution of the offense, and the want of it a perfect defense. In the last case, decided in March, 1893, the trial court charged that, “if the jury believe defendant and Tina Garzell were well acquainted with each other, and defendant, knowing her character, promised to marry her, and subsequently seduced her by virtue of said promise, he could not avail of her want of chastity as a defense.” The supreme court held it error, and reversed the case. A stronger and more pointed announcement of the view we are putting forward can hardly be imagined, the charge in that case being, as here, in the very language of the statute. It is true that, in nearly all the states, the statutes making punishable the seduction of women under promise of marriage have in the statutes the words, " of previous chaste character, ’ ’ or “of good repute,” or similar words; but this legislative con-census, aided, too, by almost universal judicial concensus of opinion upon the identical subject, only emphasizes the accuracy of Mr. Freeman’s statement, supra, that it is “the evident
Can the same act be a felony, punishable by five years’ imprisonment in the penitentiary, if the female be a prostitute over sixteen years of age, but nevertheless innocent, and dispun-ishable if only the victim be a girl under sixteen ? To hold that, in a prosecution of one for seducing a girl under sixteen, not •yet imperiled by contact with the vicious, previous chastity is essential to conviction, but that, in a prosecution for seducing a woman long conversant with the existence of libertinism, chastity is not essential, is an obvious inversion of nature, for the presumption of purity must be strongest in the childhood period. If law is the perfection of reason, this construction must be discarded. • There must be seduction — a leading aside from the path ofwirtue. She who is, at the time of the alleged seduction, already unchaste, may be still further debauched, but not seduced. It is a contradiction in terms to say that she who is already, at the time of the act, unchaste can be seduced. The transaction should not ‘ ‘ smack of bargain and barter, ’ ’ but should speak the tragedy of betrayal. It will be specially noted that all the decisions referred to in this opinion, except those from Michigan, are on statutes for seduction under promise of marriage, like ours, and that the statutes of Arkansas and Texas are identical — the one literally, the other substantially — with ours.
As the case must go back for a new trial, we add that we do not regard the evidence in this record as sustaining the plea of the statute of limitations. Katie Douglass testified that the promises were continued up to the fall of 1893, and on this point the case of People v. Millspaugh, 11 Mich., 278, is decisive that the prosecution is not barred.
The learned judge below, in granting the instruction complained of, very naturally misconceived the concurring opinions in. the Ferguson case, and gave them a broader meaning than was intended. For the error indicated, the judgment is
Reversed, and the cause remanded.
Concurrence Opinion
specially concurring.
In Ferguson v. State, 71 Miss., 805, in which the question as to whether the female, carnal knowledge of whom the defendant had obtained by promise of marriage, must have been of previous chaste character, was not necessarily involved. Judge Campbell and I doubted whether, under our statute,, this fact was essential, and, in a concurring opinion therein, I expressed the opinion that such previous chaste character was not required. On a more careful examination of the question, I have reached the opposite conclusion. I ain largely influenced by the fact that, in another section of the statute (§ 1004), where the seduction of females under sixteen years of age is denounced, the female must have been of previous chaste character. I cannot believe that the penaty of the law is denounced against the seducer of a female under the age of sixteen, only when she is of previous chaste character, and, yet, that previous chaste character is not essential when the woman is above that age. .