93 Cal. 74 | Cal. | 1892
The defendant was tried and convicted upon an information charging him with the crime of seducing an unmarried female of previously chaste character under the promise of marriage.
Section 268 of the Penal Code, under which the information was filed, provides: “ Every person who, under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character is ' punishable by imprisonment in the state prison for not more than five years, or by a fine of not more than five thousand dollars, or by both such fine and imprisonment.”
1. In order to convict the defendant of the crime defined in this section, it is necessary for the state to prove that the person seduced was an “unmarried female of previous chaste character,” and that she consented to sexual intercourse with the defendant upon the sole consideration of his promise to marry her. Unless all of these elements are established by competent evidence, the crime is not proved. It is as essential for the prosecution to show that the person against whom the offense was committed is of the character named in the statute, as it is to show that the sexual intercourse was had under a promise of marriage. The statute does not attempt to punish the seduction of a married woman, or of one whose character was not previously chaste, nor does it attempt to punish illicit cohabitation, or the seduction of an unmarried woman whose character was previously chaste which is accomplished either in whole or in part by any other means or from any other motive than a promise of marriage. This construction of the statute was taken by the court below. It instructed the jury: “To convict the defendant, in this case, of seduction, the jury must find, from the evidence in the case, that the prosecuting witness was, at the time of and prior to the fifteenth day of April, 1889, of previous chaste
For the reason that there was no evidence before the jury that the prosecuting witness was unmarried, their conviction of the defendant was unauthorized.
2. The court gave to the jury the following instruction: “ Previous chaste character is established by showing that the party lives with respectable and reputable families, and that her daily associations were with such people; and when the prosecution gave the names of the persons with whom the complaining witness had lived and associated, the presumption of law is, that they were respectable and reputable people, and the burden of showing that they were otherwise was upon the defendant."
The effect of this instruction was to say to the jury, that by her testifying that she lived and associated with certain people whose names she stated, she thereby “ established ” her previous chaste character, because the presumption of law is, that those persons were respectable and reputable people. Even if it had been shown at the trial that the persons whose names she gave were respectable and reputable people, the fact that she had lived and associated with them would be only evidence from which the jury might infer her character; but it would not “ establish ” it. Her previous chaste character was an essential element to be shown by the prosecution before the crime could be established, and was a fact to be determined by the jury from all the evidence before it. The effect of the above instruction was, however, to take from the jury all consideration of any other evidence than that referred to in it.
For these errors the judgment and order of the court below are reversed.
Sharpstbin, J., McFarland, J., De Haven, J., Garoutte, J., and Paterson, J., concurred.