People v. Weinstock, 140 N.Y.S. 453

140 N.Y.S. 453 | New York City Magistrates' Court | 1912

John J. Freschi, City Magistrate:

In the year 1901, the complainant, who had. come to America shortly before that time, married one Henry Kronenberg, in Brooklyn, New York, where she lived with him for a period of one year. Soon thereafter he deserted her, and ever since his whereabouts have been and still are unknown. The complainant has never heard from him or about him, and she does not now know whether he be living or dead. The real cause of their separation is not clearly established. The complainant testified that there was no quarrel, warning or notice leading up to it, or any reason for her husband abandoning her; but, she added, further, that she had heard he went away with another woman whose name is unknown to her. Efforts by the prosecutrix to locate him have been unavailing. Proof of the nature and extent of her efforts to find or place him, or what, if any, means or methods have been employed by her, or others on her behalf to ascertain whether her husband is or is not still alive, is not furnished; and I am asked to rely solely upon a broad general statement that she tried but failed to learn anything concerning him.

Notwithstanding the failure of such important proof, the prosecutrix asserts that the presumption of death operates in her favor, and she chooses to treat herself as an unmarried woman, claiming the protection of the statute. (See. 2175; Penal Laws.)

On October 25, 1911, the complainant, Annie Kronenberg, laid before a City Magistrate an information charging the defendant with a violation of the penal laws (supra) in that he did on January 25, 1911, at the City of New York, in the County of New York, have sexual intercourse with her, an alleged “ unmarried woman of previous chaste character ” under a promise of marriage.

It is further charged in the complaint that, at subsequent dates, the defendant repeated his promise to marry her in the presence and hearing of various witnesses and that one Eva Spero and Mary Girard, whose corroborating affidavits are attached to the complaint, saw, while looking through an open window leading from their room across an air shaft and into the adjoining room, where the said complainant and defendant were, the commission of the sexual acts referred to in the complaint.

This examination is to determine whether the crime charged has been committed and whether there is sufficient cause to believe the defendant guilty thereof, or whether he shall be discharged.

Aside from the question as to whether there is any other evidence that may tend to corroborate the prosecutrix, there are interesting propositions of law involved, which must be determined before passing to the probability and truthfulness of complainant’s version of the happenings on January 25, 1911.

Seduction was not an offense at common law. It is made a crime by statute in some States. (People v. Nelson, 153 N. Y. 90.)

The statute in ¡New York provides that a person, who, under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character, is punishable by imprisonment for not more than five years, or by the fine of not more than one thousand dollars, or both, and no conviction can be had on the testimony of the female seduced unsupported by other evidence.

‘Counsel for the defendant urges a strict construction of the statute because of its penal character. But I must not overlook the legislative rule of construction in section 21 of the Penal Law, which provides: “ The rule that a penal statute is to be strictly •construed does not apply to this chapter or any of the provisions thereof, but all such provisions must be construed according to the fair import of their terms, to promote justice and effect the objects of the law,” and to quote Mr. Justice Werner People v. Abeel (182 N. Y. 415, 422), in this connection “ it is not the province of courts to legislate or to nullify statutes by overstrict construction. That is particularly true when the legislature has ordained a rule of construction.” The following comment was made in the case of People ex rel. Hunt v. Lane (132 App. Div. 406, 407) : “ In construing statutes, words are to be used in their technical meaning, if they have acquired such meaning, and in their popular meaning, if they have not, unless adequate grounds are found either in the context or in the consequences which would follow from a literal interpretation, for concluding that such interpretation does not give the real intention of the legislature.”

The defendant contends that the prosecutrix is a married woman, and therefore, unchaste; and in this connection argues that this statute was enacted solely to protect females who have never married, and that unless virginity is the basis on which such a complaint is predicated, seduction cannot be sustained.

In the case of an unmarried chaste woman, chastity has been claimed, by the defendant, to mean virgo intactaand the case of Jennings v. Commonwealth (109 Va. 821), decided under the Virginia statute, which reads like the Hew York law, in respect to seductions under a promise of marriage, is cited in support of such claim. That ease held that a divorced woman is not an unmarried female and cannot be the subject of seduction ■and the court reasons that the case is wholly different with women who have been married. They have known man; and, possessed of the knowledge which such intercourse imparts, if chaste, are immune from the seducer’s wiles. To the same effect is People v. Kehoe (123 Cal. 224, 229.)

Under a statute similar to ours, the Supreme Court of California in the Kehoe case held that “ chastity as here employed, means, in the case of an unmarried female, simply that she is virgo intacta, and though one woman may permit liberties, or even indecencies, * * * so long as that woman has not surrendered, her virtue she is not put without the pale of the law.”

The defendant also cites Kirk v. Long (7 Upper Canada Common Pleas Rep. 363), wherein it was held that a father cannot recover damages for the seduction of his daughter, a widow, under the statute 7 Wm. IV. ch. 8; and therein the court says that an unmarried female obviously means a female unwedded or in a state of celibacy.

I cannot agree with this view of the counsel for the defendant. Such a construction would operate to exclude, to give one instance, any and every woman upon whom rape was ever perpetrated, from the protection of the law.

The word “ seduction ” is a derivative from the Latin word meaning, to lead astray. Each case of this kind must stand upon its own facts. There is no exact definition of the manner or kind of seductive arts (Hall v. State, 134 Ala. 90, 116.)

■As substantially stated in the last case, there is no doubt, that there is a time in the life of a female when she is more susceptible to the arts of the seducer than any other. All things must be considered as tending to establish the probability of the charge of the prosecutrix — her age, the relation in which she stands toward the defendant, the character of the persuasion, her innocence and ignorance of the sexual relation and her weakness and experience.

The court may consider that she was at a critical age when judgment is weak and passion strong and-.when virtue falls an easy prey to the blandishments of the designing libertine — artifices and blandishments, which exercised upon a woman of more mature years would fall harmless. (Lybarger v. State, 2 Wash. 562.)

A controlling element in cases of this class is that the prosecutrix was chaste at the time of the perpetration of the sexual acts under a promise to marry which has allured her from a path of rectitude to a bed of debauchery. (Putnam v. State, 29 Tex. App. 454.)

The Standard Dictionary defines “ chaste ” as a state “ free from unlawful sexual intercourse; virtuous; said of persons or of their lives or conduct.”

“ Chastity ” means physical purity as a fact and as an actual •condition. The courts of this and other States hold it to mean actual personal virtue and character, not mere external reputation for chastity (Carpenter v. People, 8 Barb. 603; Kenyon v. People, 26 N. Y. 203; People v. Nelson, supra; Safford v. People, 1 Parker Cr. Rep. 474; State v. Prizer, 49 Iowa, 531; State v. Painter, 50 Iowa, 317; Bowers v. State, 29 Ohio St. 542; State v. Lockerby, v. 50 Minn. 363; People v. Clark, 33 Mich. 112; Cook v. People, 2 T. & C. 404; Wharton’s Criminal Law, vol. 2, sec. 1757, p. 600.)

Some States (Iowa and Minnesota) hold that the presumption of chastity is sufficient to establish previous chaste character and until evidence appears to the contrary the presumption has the force of uncontroverted evidence, Sutherland v. State (30 Iowa, 570) ; but, in New York, it is incumbent on the prosecution to bring forth substantial proof of character as part of its case. (Safford v. People, 1 Parker Cr. Rep. 474; Kenyon v. People, supra.)

The Supreme Court of Michigan in People v. Clark (supra), under a similar statute, held that, even though the parties had Bad illicit intercourse at short intervals, to warrant a conviction •of seduction for a second or third, or later acts, there should be clear and satisfactory proof of reformation and that the burden cf proof in that regard was upon the prosecution.

There can be no doubt that a lawfully married woman, a widow, or a woman who obtains a divorce, may be' chaste and •actually virtuous. Lawful matrimony or lawful wedlock cannot be said to deprive a, good and pure woman of chastity and virtue.

Presiding Justice Welles in the Carpenter case (supra) even went so far as to write that “ if the female has previously fallen from, virtue, but has subsequently reformed and become chaste, there is no doubt but she may be the subject of the offense declared in the statute ” and that “ the word ‘ previous/ in this connection, must be understood to mean immediately previous, or to refer to a period terminating immediately previous to the commencement of the guilty conduct of the defendant.” (See also Colby’s Criminal Law, vol. 1, p. 507, and foot note 5 Am. & Eng. Ency. of Law, 2nd Ed., p. 871, and cases there cited.)

Wharton’s Criminal Law, 10th ed., p. 602, sec. 1757, says: “ For it would be inhuman and perilous to assume that women, once fallen, but reformed, are afterwards exposed without redress to a seducer’s arts. The policy of the law in such cases is to reclaim and guard.” If such a woman is entitled to the law’s protection, I see no reason in law or good .morals why a widow or divorcee should not have equal protection in the same regard before the law.

When the relations between a defendant and the prosecutrix are meretricious and their intercourse illicit, then surely, such conduct comes within the spirit of the act and is condemned so as to take her out of the class of those chaste unmarried females who are entitled to the protection of this law.

A woman may have been guilty of unchaste conduct and subsequently become chaste in legal contemplation and be the subject of seduction. (Wilson v. State, 73 Ala. 527; Polk v. State, 40 Ark. 482; State v. Carron, 18 Iowa, 372; State v. Moore, 78 Iowa, 494; People v. Clark, 33 Mich. 112; State v. Thornton, 108 Mo. 640; Patterson v. Hayden, 17 Oregon, 238.)

The prosecutrix must be unmarried.

The authorities do not agree on the meaning of the word *c unmarried.” Both in the construction of wills, in civil causes generally, and the interpretation of penal statutes, there has been great difference of opinion as to whether it is intended to include persons who have never been married, or whether it applies to those who have been married and are at the time single and unmarried.

<e Unmarried ” is defined by the Century Dictionary “ not married;” “ single;” with those note “ commonly the word implies that the person to whom it is applied has never been married ; but it may be used of & widow or widower, and possibly of a divorced person.” ,

“ The term is a word of flexible meaning, and slight circumstances, no doubt, will be sufficient to give the word its other meaning of not having a husband or wife at the time in question” (27 Am. & Eng. Ency. of Law, 1st ed., p. 697). In Clarke v. Colls (9 H. L. 601), Lord Cranworth said, “ that the word ‘unmarried’ may without any violence to language, mean either ‘ without ever having been married ’ or ‘ not having a husband living at her death.’ ” (Peters v. Balke, 170 Ill. 304, 312. See also in Re Saunders Trust, L. R. 1 Eq. Cas. 675; Day v. Barnard, 30 id. 220; Pratt v. Matthew, 22 Beaver, 328; Mitchell v. Colls, 29 L. J. Ch. 403.)

The plain meaning of the statute, in my opinion, is to protect the virtuous female, who is at the time of the offense without living husband. A widow is a chaste unmarried woman unless she engages in illicit intercourse with men.

Mr. Wharton in a foot note in his work on Criminal Law, says: “ The Roman law made penal the seduction of widows as well as virgins. Stuprum,, which is interdicted, included in its widest sense every turpitudo; in a narrower sense every coitus illicitus; in a sense still more contracted, unchastity. Seduction of women of chastity was made highly penal (4 Inst, de publ. jud. 4, 18.) The canon law, in addition, in case of the seduction of a virgin by an unmarried man, required him to endow and marry her. (Ci. de. adult. 5, 16.)”

The character and condition of the female identified by the statute- is one who is single, having no husband at the time of the commission of the acts which are the basis of this atrocious crime.

Has not the legislature indicated by “ female ” in this statute, the class of persons intended to be the subject of a seduction ?

Does not the status of the woman at the time of the making of the complaint govern ? T'he term “ unmarried ” has application only to the time of the commission of the acts constituting seduction. If maids only are included, the statute would shut out all widows, divorcees and women generally, who at some time or other have sexually known man. In my judgment the main purpose of the statute is to protect all women who are single at the time of the perpetration of the wrong. The absurdity that a different construction would effect must be obvious. It seems reasonable that, if a woman' once fallen from virtue, as is stated in the Carpenter case (supra), may upon proof of reformation be the subject of a seduction, then a woman who has become a widow after a married life of virtue is entitled to no less protection than the female who at some time in the past has been guilty of illicit intercourse. It does not seem reasonable to me that the legislature ever intended any such result. I do not think that the word “ unmarried ” should be construed in its narrow sense.

The language of the statute is “ unmarried female.” The statute does not use the term “ maid ” nor “ widow,” as in the statute of 3 Henry VII. cap. 3, after which many of the American statutes are patterned -and taken, but the more comprehensive word “ female ” which is generic in its meaning, including therein all unmarried women, whether spinsters, widows, or divorcees.

The foundations of civil society require a fair and broad meaning. The policy of the law is to protect. If previously married women are not included, it would be tantamount to saying that by marriage a woman loses the protection of the statute.

Confidence and affection seem to play a great part in all cases of seduction. Hay not inducements lead even a previously married woman, now single, to consent ?

As Judge Pratt says in People v. Hustis (32 Hun, 58, 60), this statute “ was passed in the interest of the good morals and not to set a premium on licentiousness. It had in view to guard the pure and unsuspecting from illicit connection where they submit solely because they are led to believe that they are under -a meritorious promise of marriage with the seducer. Any other construction would have a tendency to subvert good morals and furnish a cover for licentiousness and blackmail.”

In People v. Alger (1 Park. Cr. Rep. 333, 335), the court states that the framers of the act seem to have assumed that under such circumstances, the consent of the female might be much more readily obtained. That she confiding in the promise of future marriage, and relying upon it, would be more liable to yield to the solicitations and temptations of the man under this obligation to her, than otherwise. Hence the statute was confined to this particular class of cases. It was to protect females really standing in such a relation to a man and confiding in his promise, from the employment of the seductive arte against them by the man, and to punish him who, under such circumstances, should be guilty of violating and betraying and disappointing that confidence to the disgrace and ruin of the female, and the injury and scandal of society, that the statute was chiefly enacted.

The Matter of Burton’s Will (4 Misc. 512, 516), was a proceeding to prove an instrument in writing as the will of Anna E. Burton, deceased. It was claimed that her will was revoked by her subsequent marriage under the statute providing that “ a will executed by an unmarried woman shall be deemed revoked by her subsequent marriage. (2 R. S. art. 3, chap. 6, see. 44.) The court says: “ There can be no doubt that when she executed the will she was a married woman. Webster defines ‘ unmarried ’ as meaning ‘ not married; having no husband or wife,’ and our 'Oourt of Appeals held, In Re Kaufman (131 N. Y. 620), that the term unmarried woman’ as used in this statute is a woman ‘ not in a state of marriage.’ ”

The words of a statute are to be taken in their ordinary and familiar sense. The court is not at liberty to obtrude into a statute a condition or qualification not found therein. ■ It cannot speculate upon the intention of the legislature where the words are clear, and to construe an act upon its own notions of what ought to have been enacted; nor can courts correct what they deem excesses or omissions in the legislation. Penal statutes must receive a strict construction. They cannot be extended by equity; that is, things that do not come within the words shall not be brought within it by construction. (Potter’s Dwarris Stat. 193, 200, 203, 204, 245, 247; Suth. Stat. Const. secs. 235, 237, 238 et seq.)”

The word “ unmarried ” was the pivotal word on which the controversy in the construction of a will depended, in the Matter of the Union Trust Company (179 N. Y. 261, 266), wherein Chief Justice Cullen, writing for the court, says, that it cannot, be said that the primary meaning of “ unmarried ” is never having been married, yet he adds: “ The most that can be said is that while either use of the word is correct and justified, not. only by the lexicographers but by the decisions, the term is; more frequently employed as referring to people who have never been married than to widows, widowers or divorced persons.” And on page 264, the Chief Justice continues: “The great, weight of authority is to the effect that is such cases ” (of wills) “ unmarried ” is to be construed as not being married at the-time * * * .”

The Appellate Division, Supreme Court, in the Matter of Oakley (67 App. Div. 493, 496), in discussing the case of Dalrymply v. Hall (16 Ch. Div. 717), quoted a head note from that case that in the absence of context, showing a contrary intention the word “ unmarried ” must be construed according torts original and primary meaning as “ never having been married ” and, therefore, that the gift to the children of B. did not-take effect, he being a widower; that case, however, is equally an authority for holding that where the context does show a different intention the word “ unmarried ” should not be defined as “ never having been married.”

It devolves upon the State to show that the prosecutrix is an unmarried female, not necessarily by direct evidence but like any other fact, it may be shown by facts and circumstances. (State v. Reed, 153 Mo. 451.)

Just as character is not founded on a presumption of law (People v. Nelson, 153 N. Y. 90, 97), so by operation of law a woman cannot be deemed “ unmarried. ” within the meaning of this penal statute when in fact she may have a husband living. It was not intended to treat a presumptively unmarried woman, as being within a state of constructive and presumptive widowhood. It must be absolute and defined. While she may legally consent to and actually marry where in a proper case the presumption of death of her husband operates, still the marriage at best is voidable (Domestic Relations Law, sec. 7, subd. 5) and on the return of her former husband, or proof that he is still living, the second marriage may be annulled. Let me assume that in such a case, the defendant were to be held and convicted of seduction under promise to marry and then complainant’s husband was found to be still alive, we would have the anomalous condition of a presumption of law working an injustice. Eo defendant should be convicted or even held on a case,, one of the essential elements of which is not actually proven but which under a presumption of the civil law is presumed to exist at the time of the alleged seduction.

The Supreme Court of Missouri in the State v. Wheeler (108 Mo. 658, 664), laid down this rule: “We know of no presumption that a woman is unmarried in the absence of any evidence whatever on the point.”

In Zabriskie v. State (43 N. J. L. 640, 642), the court said:

The law will not presume that the female is single,” and it even held that chastity will not be presumed as a conclusion of law; that presumptions of law are used as mere aids to the defense and not as instruments of assault. (People v. Krusick, 93 Cal. 74, 78.)

The defendant in the Krusick case was convicted of seducing an unmarried female of previous chaste character under a promise of marriage. The trial court charged the jury: “You have no right to infer or presume that the prosecuting witness was an unmarried female. It devolved upon the prosecution to establish that fact * * * and if the prosecution has failed to do so, it is your duty to acquit the defendant.”

There was no proof that the witness was unmarried. On appeal the court said that reference to her as “ girl,” “ young lady ” and “ Hiss ” does not furnish enough evidence of the fact and adds: “ The jury were not authorized to found an inference thereon, that she was unmarried, nor can the defendant be convicted upon a mere inference of this fact; any more than upon an inference of the other facts which are necessary to constitute a crime (State v. Carr, 60 Iowa, 453) * * * and the fact that she was unmarried is an essential element of the crime, and until it is shown, the presumption of innocence prevails in favor of the defendant.”

In the Matter of Wagener (143 App. Div. 286, 287), Judge Miller writes:

“ The general rule that an absentee, who has not been heard of for seven years, may be presumed to be dead at the expiration of the seven years, for the purpose of distributing an estate, is well settled (see Jackson v. Claw, 18 Johns. 347; Eagle v. Emmet, 4 Bradf. 117; Matter of Sullivan, 51 Hun, 378; Barson v. Mulligan, 191 N. Y. 306, 324.) Of course, the rule is to be applied with caution (Matter of Board of Education of New York, 173 N. Y. 321, 326), and it has limitations. The rule and its limitations are stated, with supporting authorities, in Lawson’s Presumptive Evidence (pp. 251 et seq.). Circumstances may justify a finding of death before or they may be such as to give rise to no presumption either at or after the expiration of seven years. Each case must necessarily depend upon its own facts. When the failure of the absentee to communicate with his friends is satisfactorily accounted for on some other hypothesis than that of death, or when no inquiry has been directed to the place where he was last known to be as in Dunn v. Travis (56 App. Div. 317) no presumption arises. But it is to be borne in mind that the rule was adopted by analogy to the statutes with reference to bigamy and to leases for life, as a rule of necessity to fix the rights of the living with relation to the absent, and that it is necessarily an artificial rule, depending for its application upon the known facts regardless of what the actual fact may be. Bights are not to be held in abeyance indefinitely on account of absence of a person of whom no trace can be found. He may not be dead, but he will be presumed to be dead for the purpose of fixing the rights of those known to be living. In Davie v. Briggs (97 U. S. 633), Mr. Justice Harlan quotes the following rule from Stephen’s Law of Evidence (chap. 14, art. 99) * * * “a person shown not to have been heard of for seven years by those ». (if any) who, if he had been alive, would naturally have heard of him is presumed to be dead, unless the circumstances of the .case are such as to account for his not being heard of without assuming his death.”

The common law presumption of death 'after a lapse of years is not sufficient in a criminal prosecution. There are no such presumptions under the criminal law, except the presumption of innocence in all stages of criminal proceedings, and those which establish rules of evidence that may be rebutted. The criminal courts should not presume the death of another in cases of this class, nor should any conviction for crime be had on mere suspicion or on a presumption of the existence of a fact for which there is no basis; and if the evidence is dubious it should be resolved in the defendant’s favor.

•On an application for letters of administration upon the estate of an alleged decedent, Surrogate McCauley in writing in the Matter of Jones (70 Misc. 154, 157) said: “ It is quite impossible to give any standard by which to measure the sufficiency of circumstantial evidence of death; but mere information and belief, founded on nothing, is, of course, not proof in any legal sense.”

Mere disappearance does not give rise to the presumption of death (In the Matter of Mathews, N. Y. Law Journal, Dec. 18, 1911) and where, as in this case, the husband of the prosecutrix left supposedly with another woman it can hardly be expected that he would make his whereabouts known to anyone. (Town of Van Buren v. City of Syracuse, 72 Misc. 463.) It is improbable that he, even if alive, would or could have been heard of at or could or would have communicated with his residence, home or domicile. (Lawson’s Law of Presumptive Evidence, rule 53, p. 294.)

The death of the husband of the prosecutrix has not been proven nor has any evidence been adduced from which it can be reasonably inferred. Under the circumstances of this case, I cannot presume that the prosecutrix is an unmarried woman within the purview of the statute under consideration. ■

The promise to marry must be absolute. A conditional promise has been held to be insufficient. (People v. Van Alstyne, 144 N. Y. 361; Armstrong v. People, 70 N. Y. 38.)

The persuasion which the prosecutrix testified that the defendant used to overcome her natural scruples led to the fixing of the date of the promised marriage. She says that the defendant would marry her “ when ” his daughter Hilly married^ The district attorney contends that this is not a promise conditional in character, although the prosecutrix admitted in her cross-examination that no such marriage has ever taken place. The People claim that this is a mere limitation applicable only to the time when the marriage should be performed. ;

It is true that it is not essential that the promise should he to marry the prosecutrix immediately or at any definitely fixed time, and that a promise to marry in the future is sufficient, hut, nevertheless, where the parties concerned have it understood that such marriage is dependent upon a contingency which may never happen, then, in my opinion, it seems that the promise is not absolute and the requirements of the statute have not been met.

The court, writing in People v. Duryea (81 Hun, 390, 392), says: “ It is impossible to have seduction under a promise to marry when the only promise at the time of the seduction is one depending upon an event that may never occur.”

The People failing to make out a prima facie case, the complaint must be dismissed and the defendant is ordered discharged.

SEDUCTION UNDER PROMISE OF MARRIAGE..

(See notes, vol. 5, p. 221; vol. 7, p. 119; vol. 12, p. 374.X

GENERALLY.

Where the promise was to marry, "when they got old enough” this alone, if it induced the woman to yield, is held sufficient. People v. Kehoe, 123 Cal. 224.

To accomplish sexual intercourse with a virtuous woman pending engagement to marry her may be seduction, though the consent be obtained without other persuasion than that which is implied in proposing the intercourse and repeating the promise to marry. Woodward v. State, 5 Ga. App. 447.

A promise of marriage alone, if it induced the woman to yield, held sufficient to sustain an indictment. Phillips v. State, 108 Ind. 406.

A woman is debauched within the meaning of the Missouri statute, where a man has intercourse with her in connection with a promise of marriage. State v. Marshal, 137 Mo. 463.

It need not be shown that the promise was made or repeated at the time of the illicit intercourse, if it was the inducing cause. State v. Brassfield, 81 Mo. 151.

Intercourse brought about by promise of marriage only, with no aid from persuasion, or 'other false and fraudulent means, will not constitute the offense of seduction. O’Neill v. State, 85 Ga. 383.

A man must, in addition to the promise of marriage, use some other means than a mere appeal to the lust or passion of the woman, to make the crime seduction. Putnam v. State, 29 Tex. App. 454.

Where the prosecutrix testified that, at the time of the sexual intercourse, defendant promised to marry her, and assured her that the act would not be wrong in view of the fact that they were soon to be married, and she yielded to him on account of such promise to marry, it was held sufficient to bring the case within the rule that the sexual intercourse must be accomplished by false promises, artifices, or deception to constitute the crime of seduction. State v. Heatherton, 60 Iowa, 175.

Repeating the engagement vow at the time of the sexual intercourse may imply persuasion. McTyler v. State, 91 Ga. 254.

Where consent is given pending a virtuous engagement, in consequence of a repetition of a promise to marry, already made-and accepted, the woman yielding in reliance on the plighted faith of her lover, and he intending that she shall trust and be deceived, such a case constitutes seduction, for to make love to a virtuous, unmarried woman, woo her, make honorable proposals of marriage, have them accepted, and afterwards undo her under a solemn promise of marriage or repetition of the engagement vow, is to employ persuasion as well as promises of marriage. Jones v. State, 90 Ga. 616.

A definite time for the marriage to take place need not have been fixed. Jinks v. State, 114 Ga. 430.

A promise of marriage is essential, and seduction by other means, without such. a promise, does not constitute the offense. People v. Lomax, 6 Abb. Pr. 139.

The gist of the offense is that the seduction shall be accomplished under, or by means of a promise of marriage which is unfulfilled, and that without the promise there can be no crime under the statute, however reprehensible the conduct of the man may be. State v. Adams, 25 Oregon, 172.

Such a promise, if made as a mere matter of form, or if there was no reliance thereon, is insufficient. People v. Smith, 132 Mich. 58.

Where the intercourse first took place several weeks after the promise, it was held that such intercourse was under the promise of marriage. State v. Slattery, 74 N. J. L. 241.

Immaterial that the promise was made previous to the time of the seduction if defendant made use of it to induce the prosecutrix to yield her person to him. State v. Raynor, 145 N. C. 472.

Not necessary that the prosecutrix shall have requested the defendant to fulfill his promise to marry. Lasater v. State, 77 Ark. 468.

' The age of consent, fixed by section 278 Penal Code, does not apply to the crime of seduction under promise of marriage. People v. Nelson, 12 N. Y. Crim. 368.

A divorced woman is not an “unmarried female” within the meaning of the statute. Jennings v. Commonwealth, 109 Va. 821.

Offense cannot be committed against a married woman even where the statute is silent. Norton v. State, 72 Miss. 128.

Offense can only be committeed against an unmarried female. People v. Krusick, 93 Cal. 74.

A woman can be seduced but once under sections 284 and 285 Penal Code,—sections 2175 and 2176, Penal Law. People v. Nelson, 12 N. Y. Crim. 368.

In order to constitute seduction, the defendant must use insinuating arts to overcome the opposition of the seduced, and must, by his wiles and persuasions, without force, debauch her. People v. Gumaer, 11 N. Y. Crim. 305.

Merely having sexual intercourse with. a female does not constitute seduction. The defendant must use insinuating acts to overcome opposition. People v. Gumaer, 4 App. Div. 412.

Age of the female is immaterial if she have intelligence and ability to distinguish right from wrong. People v. Nelson, 153 N. Y. 90.

CHASTITY OP PROSECUTRIX.

Essential that the woman should have been of previous chaste character at the time of the alleged seduction. People v. Nelson, 153 N. Y. 90.

Even where statute is silent as to necessity of chastity, it has been held that the legislature intended to protect chaste females only, and that therefore the burden is on the state to prove chastity. Smith v. Commonwealth, 32 S. W. (Ky.) 137.

Chaste character does not mean reputation for chastity, but actual personal virtue, as a moral and physical fact. People v. Nelson, 153 N. Y. 90.

Evidence of previous chaste character. Kenyon v. People, 26 N. Y. 203.

Previous unchastity is none the less a defense because defendant, ■when he made the promise to marry, knew of the unchaste reputation of the woman in the community. Mrous v. State, 31 Tex. Crim. 597.

Prior unchastity a defense where prosecutrix’s intercourse with a third person followed defendant’s promise of marriage, if it preceded her intercourse with defendant. Barnard v. State, 76 S. W. (Tex.) 475.

Previous chaste character means actual personal virtue as a moral and physical fact, and not reputation for chastity. Crozier v. People, 1 Park. Crim. 453.

The fact that a girl allowed men to hug and kiss her does not indicate such a want of chastity as to overcome a verdict of guilty against the defendant. State v. McIntyre, 89 Iowa, 139.

A woman who has a low standard of propriety and permits indelicate familiarities, yet has enough sense of virtue not to surrender her chastity except when induced to do so under promise of marriage, is a woman of previous chaste character. State v. Brinkhaus, 34 Minn. 285.

The test of virtué within the statute is whether the female,had ever had at the time of the seduction, unlawful sexual intercourse, and not whether she possesses purity of mind and heart. Woodward v. State, 5 Ga. App. 447.

A woman who has voluntarily submitted to sexual intercourse prior to the seduction is not within the statute, although at the time under the age of consent, provided she was able to comprehend the enormity of the offense. People v. Nelson, 153 N. Y. 90.

A woman debauched by force and against her will is chaste. Pope v. State, 137 Ala. 56. . ¡ *

A woman, once seduced, but afterwards reforming and leading a virtuous life, is chaste within the meaning of the statute. State v. Knutson, 91 Iowa, 549.

Chaste reputation is not required under the statute. Crozier v. People, 1 Park. Crim. 453.

A woman who is lustful and desirous of intercourse may be seduced if she .keeps her chastity and surrenders it because of persuasions- and promises of marriage. Keller v. State, 102 Ga. 506.

The test by which to determine whether the woman was virtuous-at the time of her alleged seduction is physical, not moral, chastity. Washington v. State, 124 Ga. 423.

A female of bad reputation at the time defendant obtained connection with her, whether reputation was obtained by crime or imprudence only, is not within the protection of the Pennsylvania statute punishing the seduction of any female “of good repute.” (But otherwise under New York statute.) Commonwealth v. McCarthy, 4 Pr. L. J. 436.

Where defendant and prosecutrix had had illicit intercourse for more than a year, when defendant went away, and prosecutrix reformed and led a chaste life until after defendant returned, in about, a year, when, under promise of marriage their relations were re- ' sumed, defendant was guilty of seduction when the first offense was committed after their former illicit relations had been broken off. ! State v. Moore, 78 Iowa, 494.

A woman formerly unchaste is not deprived of the benefit of the statute, if she has reformed and is chaste when seduced. Kenyon v. People, 26 N. Y. 203.

The term “previous chaste character,” as used in the sections of the Penal Law covering the crime of seduction,-do not mean reputation ‘ for chastity or chastity founded upon any presumption of law fixing the age of consent; but actual, personal virtue. People v. Nelson, 12 N. Y. Crim. 368.

CORROBORATION.

On a trial for seduction there must be corroboration of the promise and seduction, but not of the fact that the female seduced was of previous chaste character or unmarried. People v. Kearney, 110 N. Y. 188.

Evidence of attentions of the defendant upon the prosecutrix in the character of a suitor is corroborative. People v. Gumaer 80 Hun, 78.

Proof of conversations between the defendant and a physician,, including a proposition by the former that an abortion be procured, tends to corroborate the statements of the prosecutrix as to the relations between the accused and herself, and show he sought to prevent the seduction from becoming public. People v. Orr, 92 Hun, 99.

A statement by the defendant that he owned a farm and that he and the prosecutrix were. going to live there is corroborative of the promise to marry. Crandall v. People, 2 Lansing, 309.

Evidence that the prosecutrix had a child thirteen months after the alleged seduction is not corroborative. People v. Kearney, 110 N. Y. 188.

Not required that the testimony of the female as to previous, chastity and her being unmarried be corroborated. People v. Kearney, 7 N. Y. Crim. 106.

Where substantiating evidence was given by the father and mother of the complainant tending to show that the defendant, before, after and at the time of the alleged seduction, was visiting the complainant, as her suitor; that he called upon her three or four times a week and visited her evenings; that he invited her to go to a picnic where* the alleged seduction took place and met her by appointment on the way there; that he returned home with her that night, and. after this talked with her and with her mother regarding the contemplated marriage; that the time for its celebration was appointed; that it was postponed to another day; that he was shown the dress-which the complainant proposed to wear at the prospective wedding; held, sufficient corroboration. People v. Kearney, 7 N. Y. Crim. 106.

EVIDENCE—ADMISSIONS.

The admission by defendant of having sexual intercourse with, plaintiff does not admit the alleged seduction. People v. Gumaer, 11 N. Y. Crim. 305.

Burden of proof as to the promise is on the prosecution. People v. Van Alstyne, 144 N. Y. 361

The burden of proof is on the state to show that the intercourse-was accomplished by means of the promise. State v. Turner, 82 S. C. 278.

But the consent of the female to marry the accused, amounting on her part to a mutual promise to marry, may be implied. People v. Kane, 14 Abb. Pr. 15.

Where the fact that the defendant was married is - essential to the offense, and is alleged, the burden is on the prosecution to prove such fact. West v. State, 1 Wis. 209.

And likewise to prove that defendant was unmarried. State v. Slattery, 74 N. J. L. 241.

Held that an indictment for seduction need not allege that accused was single, and where the indictment was silent the state need not prove that accused was unmarried, and a verdict of guilty will, not be set aside because of the absence of such proof. Jordan v. State, 120 Ga. 864.

Any competent evidence to prove or tending to prove a promise "by defendant to marry the prosecutrix at or before the time of the alleged seduction, may be introduced. Munkers v. State, 87 Ala. 84.

Where prosecutrix testified as to the existence of an engagement Between her and defendant at the time of the seduction, evidence as to a former engagement between prosecutrix and defendant which had been broken before the alleged seduction took place, held admissible. Faulkner v. State, 53 Tex. Crim. 258.

Testimony of the mother of the prosecutrix that she had overheard ia certain conversation between defendant and the prosecutrix was admissible in corroboration of the testimony of the prosecutrix as "to the engagement to marry, and to show the terms upon which the defendant was admitted to the house. Snodgrass v. State, 36 Tex. Crim. 207.

Testimony of the mother of the prosecutrix that from the attention paid her daughter by defendant she regarded him as her future son-in-law, held incompetent to show that the crime was committed under promise of marriage. Snodgrass v. State, 31 S. W. 366.

Error to permit prosecutrix to state that she had told others of her engagement to marry defendant, although she is not permitted to name the persons informed thereof. Harvey v. State, 53 S. W. 102.

Evidence of declarations of defendant, about the time of the alleged seduction, of so intention to marry the prosecutrix, held properly admitted. Munkers v. State, 87 Ala. 94.

Accused should be allowed to testify that he was engaged to be married to another woman at the time of the alleged seduction and that prosecutrix had knowledge of the fact. State v. Brown, 86 Iowa 121.

Testimony of the prosecuting witness that before any sexual intercourse with defendant she had procured a wedding dress is not admissible as part of the res gestee. State v. Lenihan, 88 Iowa, 670.

Evidence that defendant subsequent to the seduction had refused to marry the prosecutrix, held inadmissible. Cook v. People, 2 Thompson & C. (404.)

POEM OF PBOMISE.

Just so long as the woman believed in the promise and consented in reliance upon it, it need not be as a matter of fact a valid and binding one. Crozier v. People, 1 Park Cr. 453; Callahan v. State. 63 Ind. 198.

An infant may be guilty, having reached the age of puberty, though as a matter of law his promise is not a valid and binding one because of his infancy. Kenyon v. People, 26 N. Y. 203.

A promise of marriage made conditional upon, and followed by acts of intercouse, though illegal and void as a contract, is sufficient to sustain a prosecution. Boyce v. People, 55 N. Y. 644.

The fact that after consenting on such a promise, the woman endeavored to persuade the man to desist, and at a time when it was too late to withdraw without his permission besought him to leave her, promising never to ask him to marry her, if he would do so, is no excuse or palliation of the offense. Boyce v. People, 55 N. Y. 644.

A promise to marry in case the woman becomes pregnant, or “gets into trouble” is not sufficient. People v. Van Alstyne, 144 N. Y. 361. And this even though the parties were engaged to marry at the time of the special promise. People v. Ryan, 63 App. Div 429.

The seduction must be accomplished by an absolute promise of marriage or one that becomes absolute the moment she yields. State v. Adams, 25 Oreg. 172.

New York cases distinguished on the ground that the New York statute requires a promise of marriage. State v. O’Hara, 36 Wash. 516.

Language used in making the promise of marriage held not material, it being only necessary that it he held to be intended to convey that meaning, and that it he so understood by the prosecutrix. State v. Brinkhaus, 34 Minn. 285.

Where it cannot be said that there was no testimony which would have justified the finding from thé whole case that reliance of the! woman was upon the conditional promise of the man that if she got into trouble he would marry her, held error for the trial judge to refuse to charge that “if the prosecutrix submitted herself to the defendant, relying upon his promise that if she got into trouble as a result of the intercourse he would marry her, the defendant is not guilty.” People v. Ryan, 16 N. Y. Crim. 9.

Evidence held sufficient to require the submission to the jury of the question whether the subsequent conditional promise qualified the absolute promise of marriage which preceded it. People v. Van Alstyne, 9 N. Y. Crim. 300.

A promise to marry in case the female becomes pregnant, held not within the provisions of the Penal Law. People v. Duryea, 9 N. Y. Crim. 402.

Promise of marriage must he absolute, and not conditional upon pregnancy. People v. Van Alstyne, 144 N. Y. 361.

INDICTMENT.

Where indictment charges that offense was committed at the town of Eorestburg, in the county of Sullivan, and the evidence describes the seduction as occuring near Sand Spring, without showing that such locality was within the said County, the conviction will not be reversed on the ground that the crime was not committed within that county. People v. Gumaer, 9 N. Y. Crim. 258.

Indictment may be amended so as to correct the surname of the female. People v. Johnson, 104 N. Y. 213.

LIMITATIONS OE PROSECUTIONS.

The two years’ limitation for the finding of as indictment for seduction under promise of marriage begins to run from the time of the commission of the first offense between the parties, notwithstanding the prosecutrix is then only fifteen years of age. People v. Nelson, 16 N. Y. Crim. 12.

PROMISE BY MARRIED MAN. •' -

Where the woman knows the man is married, no offense is committed. People v. Alger, 1 Park. Crim. 333.

Otherwise if she believes him to be unmarried, and relies upon his promise. State v. Primm, 98 Mo. 368.

SUBSEQUENT MARRIAGE OF PARTIES.

The subsequent intermarriage of the parties is a bar to a prosecution for the offense, and under the statute (section 2176 Penal Law) the fact of the subsequent marriage is not required to be pleaded. Such a prosecution is not ended until the judgment is actually rendered; and when the court is satisfied of the marriage of the parties before the judgment such marriage constitutes a bar and brings the case within the express terms of the statute, and it is the duty of the court to discharge the defendant from custody. People v. Frost, 24 N. Y. Crim. 388.

One who Has plead guilty to a charge of seduction under promise of marriage and has been convicted, with sentence suspended, may thereafter be sentenced, although after the plea of guilty he married the complaining witness. People ex rel. Scharf v. Frost, 24 N. Y. Crim. 195.

Subsequent intermarriage of the parties, or the lapse of two years after the commissior of the offense before the finding on an indictment is a bar to a prosecution. (Penal Code, 2285; Penal Law, 2176.),

See People v. Nelson, 153 N. Y. 90.