O'Neill v. State
85 Ga. 383
Ga.
1890
Check Treatment
Bleckley, Chief Justice.

This case was tried before Judge "Winn, since deceased; and the motion for a new trial was heard and denied by his successor, Judge Gober.

1. The trial judge charged the jury: “Under the decisions of our Supreme Court, I leave it to you to say what a virtuous woman is. I charge you that a woman who has had unlawful sexual intercourse with a man is not a virtuous woman. As to allowing a man to kiss her and take liberties with her, as to her being a virtuous woman, I leave that to you. You can consider that as honest men, taking what you know about human nature and society people, and what they do and what they do not know. A thing that woulch-be allowed in society in one place would not be allowed in another place. I leave that to you.” The motion for a new trial complains of this part of the charge as erroneous, but fails to specify in what the error or errors consist. The opinion of Judge McCay, as expressed in Wood v. State, 48 Ga, 289, was thahthe question of what is a virtuous woman ought to be left in each case to the jury; but the other two members of the court presiding in that case were of a different opinion. The charge to the jury then under review was in these terms : “ The presumption of law is that the female alleged to have been seduced was virtuous, and that presumption re*407mains until removed by proof. She must have had personal chastity. If she, at the time of the alleged seduction, had never had unlawful sexual intercourse with man, if no man had then carnally known her, she was a virtuous female within the meaning of the law. If man had then carnally known her, had had sexual intercourse with her, she is not a virtuous female within the meaning of the law.” This charge in its totality was expressly approved by Judge Trippe and Chief Justice "Warner. See pages 299, 304. These two judges being a majority of the court, their concurrence made the judgment of the court on the question involved ; and nothing to the contrary having been decided, his Honor, Judge Winn, was mistaken in leaving it to the jury to say what a virtuous woman is. In so doing he was conforming to the individual opinion of one member, but going directly counter to the decision of the court; a decision in which all the members of the court as now constituted fully concur. We think that in contemplation of law, including the penal statute on the subject of seduction, every virgin, without exception, is virtuous. This is a plain, practical standard by which to test that chastity to which the law looks in classifying females who have never been married, and who have not been deprived of their virginity by violence or force without their consent. Of course, a different standard would have to be adopted in classifying women who have been married, such as widows and divorced wives. Possibly, also, a fallen woman who has reformed and been redeemed, and who has proved her redemption by years of abstinence and repentance, might stand on the footing, if not of a virgin, of a chaste widow. But for the purpose now in hand, we need not enter upon the consideration of exceptional cases. The broad general rule is enough, that unmarried females who are virgins are virtuous; and *408those who, by their own consent, have ceased to be virgins, are not virtuous. This is the rule which should have been given in charge to the jury in the present case. It is for the court to construe the word “virtuous,”. as used by the statute, and the jury should receive and abide by that construction as decisive.

2. But while the jury have no right or power to decide that a virgin is not a virtuous woman, it is their province, and theirs alone, to decide from the evidence whether the female alleged to have been seduced was a virgin at the time she yielded her person to the accused. And upon this question, all facts and circumstances tending to show a debauched mind, such as lewd conduct and behavior before that time, may be considered; for the jury need not have direct or positive evidence of her previous connection with some other person, but only such evidence as satisfies them that she had parted with her virginity. Of this opinion were all the judges who presided in Wood v. State, 48 Ga. supra. Judge Trippe (page 299) said: “The proof of lascivious indulgences and wanton dalliances, with other evidence short of direct proof of the overt act, may authorize a jury to infer actual guilt, the illicit act.” Judge Warner, (pages 307, 308) said: “ When a defendant is indicted on the criminal side of the court for seducing a virtuous unmarried female, it is not a good legal defense for him to blackball her character by proving loose declarations, imprudent or immodest conduct on the part of his victim; but he must go further, and prove that she had lost her personal chastity prior to his alleged seduction of her, or he must prove such facts as, under the law, would raise a violent presumption that she had done so, such facts as, under the law, would authorize a jury to find that she had had unlawful sexual intercourse with a man.” In these views we concur. The jury should pronounce the woman not virtuous upon any evidence, *409direct or circumstantial, which, convinces their minds that she had previous illicit sexual intercourse; but without such evidence, they should treat her as virtuous, for in contemplation of law she is so.

3. Upon another question, to wit, whether the woman was seduced by the accused, or only joined with him in the gratification of lewd and lascivious desire, not excited by his arts and importunities, but having its roots in her own depraved and debauched mind, the jury might consider all the'facts and circumstances in proof before them going to show her want of moral chastity, although her physical virtue might be intact up to the time of the alleged seduction. We can conceive it possible that the law of chastity may lose its reign over the heart while the body remains pure; abstinence may be due chiefly to the want of opportunity. In such a case, the woman might fill the character of a seducer more than the man. At all events, she might be in such a state of readiness as to need only the form of seduction, without its substance, to win her consent. In saying this, we are dealing with a supposed case, without intending to intimate anything as to what we think, or as to what the jury should think, upon this subject in reference to the actual case before us. We only say that there can be no rightful conviction for seduction, although the woman may be a virgin, unless she has been really seduced; and that upon that question, her moral, as well as her physical, chastity is relevant. In this way the fine literary and poetic contrast of the seducer with his victim, which Judge McCay calls up in Wood v. State, may have its proper application and influence. We think the English-speaking people have always classed women as virtuous, at least in their legal relations, until they have actually committed fornication or adultery. But these peoples, so far as we are acquainted with their habits of *410thought, have ever recognized the fact that in both women and men there are many degrees of moral virtue, and that it requires little temptation beyond mere opportunity for those of the lowest degree to descend, sooner or later, into vice and crime. Still, the' weakest of all weak virgins is under the protection of law against the seducer, and if her fall can be traced to actual seduction, the law will be, and should be, her avenger.

4. What was said in the extract above quoted from tne charge of the court touching society people, what they do and whát they do not know, is not altogether clear. It is certainly competent for the jury to use their knowledge of human nature and of the customs of society in their efforts to interpret conduct and judge of its indications. Whilst they can and ought to use this knowledge in passing on the question whether a particular woman is virtuous, etc., they have no right to use it to determine what a virtuous woman is, for as we have already said, that question is not for their decision.

5. The statute on which this indictment is founded reads as follows: “If any person shall, by persuasion and promises of marriage, or other false and fraudulent means, seduce a virtuous unmarried female, and induce her to yield to his lustful embraces, and allow him to have carnal knowledge of her, such person, on conviction, shall be punished by imprisonment and labor in the penitentiary for a term not less than two nor longer than twenty years. The prosecution maybe stopped at any time by the marriage of the parties, or a bona fide and continuing offer to marry on the part of the seducer.” The indictment charges seduction by persuasion and promises of marriage, and by other false and fraudulent means. The evidence shows that the promise to marry was made in September or about cot. *411ton-pickiug time, and-that the first intercourse took place in November. It fails to show that any persuasion was used or that any reference was made at the time of the intercourse to the previous promise, or that there was any repetition of it. Indeed, the evidence is an utter blank as to what occurred at the time of the intercourse, or anything immediately preceding it which led up to and resulted in the act. It is not even stated that the proposition for intex’course came from the accused. So far as appears, there was no solicitation, importunity or suggestion proceeding from him. No device, art, wile or contrivance is mentioned as used to draw or deceive into the forbidden act. No wooing, beseeching, imploring or appealing, by word, look or gesture, is disclosed or hinted at. Miss Hall testifies she was induced to have intercourse with the defendant because he promised to marry her. Rut she dates the promise in September, or about that time, and makes no allusion to any repetition of it on this momentous occasion. It induced her, but she does not say that he used it to induce her, nor what means he employed. We think that, before the jury could legally find that she was seduced, the means and process by which her seduction was accomplished should have been brought out in fuller light. As the evidence stands, she decides the case and only leaves the jury to adopt or reject her decision. We think she should have told the jury what she knew of the means and methods of her seduction, what the defendant said and did.. Or, if he used persuasion by looks and gestures rather than by speech, this should have been told. It is evident to us that something has been kept back, or if not, that there was no seduction within the meaning of our code, but only illicit intercourse pending an engagement to marry. If she yielded simply because of that engagement, without his making any fraudulent and deceitful use of it to *412procure her consent, the crime committed by both parties was fornication,. not fornication by her and seduction by him. The statute requires something more than a promise of marriage followed by sexual intercourse, to make a case of seduction. There must also be persuasion or something equivalent thereto. The case of Wilson v. State, 58 Ga. 328, holds that repeating the engagement vow at the time of the intercourse implies persuasion, and under the language of our statute, that case goes quite far enough. The suggestion in the opinion that the word “and” might be read “or,” so as to dispense with anything as a means of seduction' other than a promise of marriage, was not acted upon in. the case, and was not well-considered. We think it is not to be<>adopted, for the plain reason that, if the legislature had desired to make the promise alone sufficient, they could and would have said so. Some of the States, we believe, have enacted statutes of that kind. Our conclusion is that there ought to be another trial, so as to bring out all of the facts fully, and if other means besides a mere promise to marry were employed to induce consent, they should be made to appear. Upon the state of the evidence adduced at the trial, to say nothing of the newly discovered evidence, we could not feel justified in upholding the verdict of guilty. If there is real guilt of this heinous and detestable offence, it certainly can be made more manifest than it has been made. No one can read the testimony of the principal witness, as it is set out in the record before us, without feeling morally certain that she knows more than she has told. We can comprehend the modesty and relutance of a female witness in dealing with a topic which must be to her both tender and repulsive; but our compassion for her feelings should not hinder us from demanding sufficient evidence for consigning a man to the penitentiary. *413In the other matters set out in the motion for a new trial, we discover no error. Judgment reversed.