Smith v. State

69 So. 402 | Ala. Ct. App. | 1915

THOMAS, J.

(1, 2) The charge was seduction, and the defendant before entering upon the trial made a motion to quash the indictment on the alleged ground that it was found by the grand jury upon the uncorroborated evidence of the female alleged to have been seduced.—Code, § 7776; Hart v. Allen, 117 Ala. 183, 23 South. 43; Allen v. State, 162 Ala. 74, 50 South. 279, 19 Ann. Cas. 867; Holland v. State, 11 Ala. App. 134, 66 South. 126.

The state joined issue upon the motion, and it was incumbent upon defendant to prove its allegations, since, presumptively, the indictment, which' had been duly returned by the grand jury, properly indorsed as a true bill and signed by the foreman, was regularly found on legal and sufficient evidence.—22 Cyc. 206; Holland v. State, Supra.

The evidence offered by defendant in support of his motion developed without dispute that, not only was the female who was alleged to have been seduced examined before the grand jury who returned the indictment, but that also three other persons were examined before them as witnesses in the case; but the evidence for defendant on the motion does not purport to show all that these three witnesses swore to before the grand jury on that examination, but only a part of. what they swore to. Assuming, without deciding, that -this part did not amount to such a corroboration of the female alleged to have been seduced as to- be sufficient to justify the finding of an indictment, we are not authorized to presume, nor was the lower court authorized to presume, against the validity of the indictment, that the other matters testified to- by the said winesses, and not shown on the trial of the motion, were not sufficient, with the matters so shown to have been testified to by them, to authorize the finding of the indictment. Hence we cannot say that the lower court erred in overruling the motion to- quash, as it does not appear that the showing-before the lower court as to- the absence of corroborating testimony before the grand jury was sufficient or satisfactory (Holland v. State, 11 Ala. App. 134, 66 South. 126), although it be that by reason of section 7776 of the Code the rule as to these matters in seduction cases is some different from the rule in other cases. —Holland v. State, supra; Allen v. State, supra; McLeod v. State, 8 Ala. App. 333, 62 South. 991.

In no case, however, can an indictment be stricken down on a presumption of the absence of sufficient evidence before the grand jury; but such absence must be fully and satisfactorily shown, by showing all or substantially all that urns testified to before the grand jury; which was, as seen, not done here.—22 Cyc. 206; Holland v. State, supra; Dovall v. State, 63 Ala. 18; Axelrod v. State, 7 Ala. App. 64, 60 South. 959.

(3) Many objections and exceptions were taken on the trial to the rulings of the court on the admission and rejection of evidence and on the refusal of charges; but. if we were to undertake to deal with each of such objections, and exceptions separately, there being such a multitude of them, it would spin this opinion out to undue length and- at the same time serve, no good purpose. We shall content ourselves, therefore, with merely reiterating a statement of those settled principles of the law of seduction which are applicable to some of the questions raised on this appeal, as a. sufficient answer to many of the contentions of the defendant. .

“Seduction” may be defined to be the act of persuading. or. inducing an unmarried woman who is chaste at the time to depart from the path of virtue, when accomplished by means of either a promise of marriage or by the .use of any species of temptation, deception, arts, or flattery, which are calculated to and do .have that effect', and which result in her ultimately submitting herself to the sexual embraces of the person acciised, whether he be a married or an unmarried man. — Code, § 7776. Simply having sexual intercourse with a woman, though she is reluctant to do so, does not, of course, constitute .seduction; nor does the having of such intercourse with her by her consent for a consideration paid or promised to be paid amount to such, where she voluntarily and deliberately sells herself, and where her consent thereto is not obtained and her reluctance not overcome by the man as the result of the employment by' him of some one or more of the means stated.

'"Deception’ is the act of deceiving; the intentional misleading of another by a falsehood spoken or acted. 'Temptation’ is that which tempts to evil; an evil enticement ór allurement. 'Flattery’ is an effort to influence another by use of false or excessive praise; insincere complimentary language or conduct. 'Art’ is the skillful and systematic arrangement or adaptation of means for the attainment of-some desired end.”—Suther v. State, 118 Ala. 97, 24 South. 43.

What temptation, deception, arts, or flattery may be sufficient in one case to overcome the will of the woman and cause her to- surrender her virtue may not be sufficient in another case — depending, as it does, upon the relative moral and intellectual strength of the man and the woman, their respective positions in society, the vantage ground of the man, the weakness of the woman, her necessities, and a variety of conditions and circumstances peculiar to each case, which must be-judged of by the jury. And therefore, when any temptation, deception, arts, or flattery at all áre shown, it must be left to the jury to' say whether it or they were sufficient, and whether it or they did in fact induce the intercourse, or whether the intercourse was the'result of merely a desire on the part of the' woman to gratify her sexual passions or deliberately to sell’ herself for’a consideration, uninfluenced and not superinduced^ by' the'arts and wiles of thé man. ’

As applicable to the case át bar, it may be sáid that it has been held, and which holding we approve, that, where it appeared that the man accused of the seduction boasted of his wealth to the unfortunate woman and promised her that he would provide for her if she would yield her person to his embraces, and such promise and persuasions were renewed from day , to day until the woman finally yielded, it constituted seduction.—Johnson v. Holliday, 79 Ind. 151.

(4) In the case at bar the evidence for the state tended to show, among other things: That the female alleged to have been seduced was but 19 years old at thé time of the trial, which made her about 18 at the time of the alleged seduction. That she at times previous thereto had been working in a cotton factory for a livelihood. That the defendant was her brother-in-law, having married her sister. That on several occasions previous to the alleged seduction he had put his arms around her, flattering her and telling her that she was a pretty little girl and begging her to yield to- him, promising that her sister, his wife, would never know anything about it, nor would any one else, except the two. That she resented and resisted his proposals until the time in question, which happened under the following circumstances: Her sister, the wife of the defendánt, became sick and was confined to her bed, when the girl here was requested by defendant to come over to his home and wait on her sister, nurse the baby, and look after the household affairs while her sister was sick. On one of the nights while she was over there for that purpose, the defendant, while his wife was still confined to her bed, asked the girl to remove the baby, a child about two years old, from its mother’s bed to the bed in his (defendant’s) room, which ivas a different room and across the hall from that then being occupied by the wife, with whom, it appears, the girl slept at night, though the baby, it appears, during such time, slept at night with defendant in the room aforesaid, and to which he requested the girl to remove it; the defendant saying at the time, about 10 o’clock at night, that he wished to retire and that he desired the baby removed before he did retire. Before going to his room, however, he asked the girl if she did not want a drink of whisky, saying in effect that he knew she was tired and that it would strengthen her for the task of waiting on his wife. She took the drink defendant fixed for her, and in a few minutes he went on to his room, to which shortly after the girl brought the child, and, so soon as sbe had laid it on the bed, the defendant, stepping from behind the door, shut it, blew out the light in the room, and then, putting his arms around the girl, fondled her, telling her she was pretty, and promising that if she would submit to him no one would ever know it, and that he would give her money all along, and saying that he had been and would be good to her, and that now that his wife was sick she ought to be good to him, arid that if she would yield to him just one time he would never ask to bother her again.

The temptation, arts, and flattery shown were sufficient to authorize the jury in believing that the girl, being at the time, by the art of the defendant, under the influence of strong drink, was persauded by his temptations and flatteries to yield up to him her virtue, and the court did not err in refusing the affirmative charge requested on this score.

(5) It was not necessary that the corroboration of the prosecutrix extend to every material element of the crime; it was sufficient if it extended only to a material fact and satisfied the jury that the woman was worthy of credit.—Allen v. State, supra; Holland v. State, supra; Pannell v. State, 162 Ala. 81, 50 South. 281. The mother and a sister of the girl, -but not the sister who was defendant’s wife, testified to- a number of facts and circumstances which corroborated her in material respects. Besides, there was evidence tending to show a confession on the part of the defendant and tending to show flight by him, as well as evidence that- at the time of the trial the child had been born. This was a sufficient corroboration to authorize a submission of the case to- the jury.- — Authorities last cited.

(6, 7) On the question of chastity, it may be said that the chastity of the female is presumed, - and that such presumption continues until there is evidence to the contrary of such a character as raises in the minds of the jury' a'reasonable doubt of such-chastity.—Suther v. State, supra. The evidence impeaching such chastity, however, must, in order to be admissible, be such as tends to show that at the time of the seduction the woman was actually unchaste. Hence, evidence of acts of sexual- intercourse on her part with ■ other men subsequent to the alleged seduction are inadmissible.—Suther v. State, supra; 35 Cyc. 1350. This was the fault which rendered objectionable the testimony of defendant’s witnesses Hal Christopher, J. Howard, and Ed Badget, who were introduced to- testify to intercourse with prosecutrix, after the time of the alleged seduction.

(8) The testimony of Claude Kay as to- what a third person, Will Williamson, told him (Kay) as to having-intercourse with the girl, was clearly inadmissible as hearsay.

(9) The testimony of Lorence Yancey, to- the effect that before the seduction he saw the girl, alleged to have been seduced, out at the park strolling- around Avith some boys, was properly excluded, as there Avas nothing in the evidence as- to her conduct on such occasion tending in the least to show that the girl did any act which would indicate in the slightest that she ivas unchaste.

(10) If there was any error on the part of the court in overruling the many objections interposed by defendant’s counsel to- the several questions asked defendant by the solicitor on defendant’s cross-examination, such error was rendered harmless by the fact that defendant answered each question so- objected to- in the negative, thereby denying the implication contained in the several questions.

(11) The state had a right, in rebuttal of defendant’s evidence tending to- impeach the chastity of the female, to adduce evidence of her general good character in that respect.—Suther v. State, supra.

(12) The fact that some of these character witnesses testified that they were testifying to- the good character of the female from their own knowledge did not render their testimony objectionable, where it further appeared from their statements that they knew her character for chastity was good, because they had never up to the time of the seduction heard anybody say the slightest thing against it, though they had known and lived in the community with the girl practically all her life.—Hussey v. State, 87 Ala. 120, 130, 6 South. 420.

(13) Refused charges 2 and 11 were merely arguments.

(14) Refused charges 3, 4, 5, 6, and 8 were faulty, if for no other reason, because of the omission in each of the word “temptation.” — Code, § 7776.

Refused charge 7 was faulty in pretermitting a consideration by the jury of the use by defendant of “temptation, deception, arts, or flattery.”

(15) Even though the prosecutrix may have loved whisky, and even though no solicitation on defendant’s part may have been or was necessary to induce her to take the drink he offered her, yet, if he gave her such drink for the purpose and with the end in view of weakening. her powers of resistance and of stimulating her sexual passions beyond their normal condition, so that they could the more easily be aroused by caresses, fond-” ling and flattery of her on his part when she subsequently came into his room, and he did, when she so came in, and while she was in such weakened condition, so brought about by his designing, caress, fondle, and flatter her, to such an extent that her sexual passions were so aroused as to overmaster her, then, although the immediate case of her yielding may have been her sexual desires, the defendant would still be guilty, since such desires were superinduced, as the result of his arts and flattery.—Dutch Brand v. State, infra, 69 South. 379; Hall v. State, 134 Ala. 90, 32 South. 750.

(16) Refused charges 9 and 13 were abstract, since there was no evidence that the girl was unconscious at the time he yielded. The sole evidence as to her not knowing what happened related to the time after she had yielded.

(17) Refused charge 10 was properly" refused because referring to the jury a question of law, in that it failed to define the word “seduced” as therein used.—Davis v. State, 8 Ala. App. 147, 62 South. 1027.

(18) Refused charges 12, 14, and 16 were covered by given charges 1, 2, 7, and 9.

(19) Refused charge 15 was argumentative, if not covered by the given charges last mentioned.

We find no error in the record, and the judgment of conviction is affirmed.

Affirmed.