| Pa. | Mar 6, 1882
delivered the opinion of the court, March 6th 1882.
The plaintiff in error was convicted in the court below of the offence of seduction. The record having been brought into this court for review, several errors have been assigned to the rulings of the learned judge, the most material of which are the second and third.
It was palpable error to instruct the jury, that evidence to corroborate the prosecutrix in regard to the promise of marriage is no longer necessary. Upon this point the learned judge charged: “ There is no doubt but that in the early history of these cases, when the defendant was not permitted to go upon the witness stand, and not allowed to testify, that there should be corroborative evidence to sustain the charge made by the young lady of the promise of marriage. But in our day and generation, when a defendant may go upon the witness stand and testify equally as well as the prosecutor, then of course these essentials are not absolutely necessary, although they may yet appear in the case. The proper way to dispose of cases of this kind is to take each case as it stands on its own four legs, take the case as the parties built it up, keeping in mind their standing in society, and their immediate manner of courtship.”
The 41st section of the Act of 31st March 1860, P. L. 392,
The fact that a defendant charged with seduction is now allowed to testify on his own behalf does not repeal tbis provision of the Act of 18G0. It is urged, however, that this error was cured by the previous portion of the charge, in which the law upon this subject was correctly ruled. If we take the charge as a whole we find this point ruled both ways. Unfortunately, the erroneous ruling was the last, and therefore likely to have made lodgment with the jury. "We cannot say it did no harm, in view of the conviction of the plaintiff in error, and the very feeble corroboration of the prosecutrix upon the question of the promise of marriage.
The learned judge, also erred in charging: “ It is contended that this case requires the essentials, so far as the making of presents, writing of love-letters and all of such things that pass between young people, to make out this case. But we have long passed that day, so far as courtship is concerned .... One man may desire to court the girl he desires to make his wife in a secluded place, or ho may desire to keep it quiet; another may be in the habit of keeping company with a young lady and appear upon the public highway from time to time so that all may see him; hence there is no standard, each case must stand on its own four legs as the. parties built it up.”
This instruction wras not calculated to aid the jury in arriving at a correct conclusion. In view of the character of the evidence it was not only inadequate but misleading and erroneous. The attentions from which the jury were permitted to infer a promise of marriage were of an equivocal character. The plaintiff in error had been in the house of the prosecutrix but four times, according to her own statement and that of her mother, and then only for a short time. He met her out in the evenings, sometimes at church, walked home with her, and left her at the gate. This is not the kind of intercourse that usually takes place between persons engaged to be married. It may teud to matrimony, but is quite as likely to lead to something else. Circumstantial evidence of an engagement of marriage is to be found in the proof of such facts as usually accompany that relation. Among them may be mentioned letters, presents, social attentions of various kinds, visiting together in company, preparations for housekeeping, and the like. These and similar circumstances, especially when the attentions are exclusive and continued a long time; may well justify a jury in finding a promise of marriage. But the court below ignored all these
We cannot assent to this proposition. The circumstances which will warrant a jury in finding an intention to marry must be of those pure acts which mark an honorable purpose, and not attentions which are consistent only with the pursuit of lust.
The instruction complained of in the fourth assignment, while not positive error, was well calculated to mislead the jury in the absence of any adequate instruction upon the law of’ the case.
The fifth assingment does not appear to be sustained by an exception, and moreover is immaterial.
We cannot say it was error to refuse to withdraw the question of seduction from the jury. There was some proof that plaintiff: in error admitted the promise to marry. The mere evidence of his attentions to the young woman was not sufficient to carry the case to the jury.
The judgment is reversed, and it is ordered that the record, with this opinion setting forth the causes of reversal, be remanded to the court below for further proceedings.