122 P. 835 | Cal. Ct. App. | 1912
Defendant was convicted of the crime of seduction and sentenced to serve a term of imprisonment in the state penitentiary. He appeals from that judgment and from an order made by the trial court denying his motion for a new trial. At the time of the commission of the alleged offense defendant was a married man and the prosecutrix was a young woman who had theretofore resided with her father *172
near Sanger in the county of Fresno. The father of the prosecutrix, before the alleged seduction of his daughter had been accomplished by defendant, received information that defendant was a married man and so informed the daughter. At the trial the young woman testified that notwithstanding the fact that she had been assured by her parent that defendant was a married man and had been forbidden to keep company with him, she had failed to obey the injunction of her father and had later submitted to an act of sexual intercourse with the defendant because the latter assured her that, while he had been previously married, a divorce had been granted to him and that he would marry the prosecutrix on a very early day. Defendant testified that he had always told the prosecutrix that he was married, but that he intended to get a divorce from his wife, whom he claimed had deserted him. It was clear from the evidence that the relations of defendant with the prosecutrix had been illicit, and it was further made clear by the testimony that the defendant, prior to the time when the first improper act was committed between the two, had promised to marry the young woman. On his part it was asserted that this promise was made upon the condition that it would be fulfilled when he secured a divorce from his wife, and upon the part of the prosecutrix it was affirmed by her in testimony that, notwithstanding the reports made to her that defendant was then a married man, she had relied upon his declaration expressed to her that he was not then married but had already been divorced, and that in submitting herself to his embraces she relied upon his promise that he would and could immediately thereafter enter into an engagement of marriage with her. Under this state of the evidence the defendant asked the court to charge the jury that if the prosecutrix knew at the time of her alleged intercourse with defendant that defendant was a married man, she was not justified in relying upon the promise of marriage as an inducement persuading her to submit herself to him. This instruction was offered in several forms, and the trial judge refused to give it in any of those forms, and failed to give any other instruction covering the same matter to the jury. While the court permitted evidence to be introduced on both sides of the question as to whether or not at the time of the alleged seduction the prosecutrix knew defendant to be a *173
married man, the jury was left wholly without any direction as to the responsibility of defendant to the law as dependent upon the finding that it might make upon that particular question of fact. Before the crime of seduction, as defined by section 268 of the Penal Code, is made out, it must appear that the prosecutrix has relied upon the promise of the accused that he will marry her; if such prosecutrix at the time knows that the promise so made cannot be carried out, as that the accused is a married man, then she is not warranted in relying upon such a representation. As was said in the case of People v. Kehoe,
The judgment and order are reversed.
Allen, P. J., and Shaw, J., concurred. *174
