State v. Eddy, 167 N.W. 392

State v. Eddy

167 N.W. 392 | S.D. | 1918

GATES, J.

The defendant was convicted of tihe crime of seduction of a widow under promise of marriage.

[1] But two questions are properly presented' by the appeal record. It is contended that, inasmuch as the record is silent as to a verbal acceptance by the prosecutrix of tihe promise of marriage, no mutual promise was disclosed; and therefore no crime was committed. We are unaware of a judicial decision which would, in effect, sanction tire changing of the words: “under promise of marriage” in section 336, Pen. Code, so as to read “under contract of marriage.” ' If an acceptance of .the promise 011 the part of the prosecutrix were necessary, it- is unthinkable that (the submission -on her part to the act of sexual intercourse on tihe strength of the promise did not constitute such acceptance.

[2] It is next contended that a 'widow cannot be considered tq.be “an unmarried female, of previous -chaste character” within the meaning of said section of the Code.. Indeed, counsel boldly assert ¡that a widow -is necessarily both unchaste ■ and a married' person in the view of said statute. In. support of their contention *392Aiey oite certain Canadian dleoiisfolnsi rendered in. 'cavil actions, but chiefly rely upon Ae decision, in Jennings v. Commonwealth, 109 Va. 821, 63 S. E. 1080, 21 L. R. A. (N. S.) 265, 132 Am. St. Rep. 946, 17 Ann. Cas. 64, which 'squarely supports the logic oif Hhieilr Contentions. After speaking of Ae protection extended by Ae larwi to innocent female® the Virginia court said:

“But Ae case Í9 wholly different wiiitli women who have been miabrieid. They have known man; and, possessed of Ae knowledge which such intercourse imparts, if chaste, are limmiune from Ae seducer's wil'es.”

It is oulr opiinioni A&t this statement 'is entirely 'too broad. If might properly be Ae basis of an argument to the jury in the di'scus'siicto of Ae question whether the prosecutrix really reliedi Upton Ae promise, but we Aiink no court should say as a matter olf law that a wlomiam who Inas been married is incapable of being Ae victim of seduction. After criticising th&it decision Ae Oregon Supreme Court, in State v. Wallace, 79 Or. 129, 154 Pac. 430, L. R. A. 1916D, 457, said:

“We entertalin Ae view Aaf few is intended folr the safeguarding olf Ae virtue of thle chaste widow just als' much as for Aat of Aie woman. who Has never been a wife.”

In People v. Weinstock, 140 N. Y. Supp. 453, Ae subject was extensively reviewed, and the conolusioini was reached that the words “unmarried female” in a similar statute included all immanniied women, wbeAer spinsters, widhws, olr divorced women.

We are of the opinion A'at Ae intent of Ae Legislature in enacting section 336, Pen. Code, should he deemed to be as determined in the Oregon and New York decisions Aove cited. We decline toi accede to an interpretation of Ale statute that would, in effect, declare all married women to be unchaste.

The judgment and order appealed from, are affirmed.