State v. McCaskey

104 Mo. 644 | Mo. | 1891

Thomas, J.

— The defendant was indicted in the Polk county circuit court for seduction under promise of marriage, was tried therefor, and sentenced to imprisonment in the penitentiary for a term of two years.

I. The state stood on the uncorroborated evidence of the prosecuting witness in this case. She testified defendant promised to marry her, and under and by virtue of that promise seduced her. Section 1912, Revised Statutes, 1879, provides that “in trials for seduction under promise of marriage, the evidence of the woman, as to such promise, must be corroborated to the same extent required of the principal witness in perjury.” It has been held by this court that “evidence of circumstances which usually accompany the marriage engagement will satisfy the statute as to supporting evidence.” State v. Hill, 91 Mo. 423. Here the prosecuting witness testified to the promise and also to “the circumstances attending the marriage engagement,” and the state argues that that satisfies the statute. It is the evidence of the woman as to the promise of marriage that must be corroborated. There must be some evidence independent of the principal witness as to the promise of marriage. In this case there is an attempt to evade this plain statutory provision by the principal witness testifying first to the promise of marriage and then to “the circumstances” that corroborate her. This is clearly not the law. She must be corroborated by some witness other than her-, self. State v. Hill, supra; Ros. Crim. Ev. [6 Am. Ed.] 765; State v. Reeves, 97 Mo. 668; State v. Primm, 98 Mo. 368.

II. There was no evidence whatever offered to show that the prosecutrix was a woman of good repute, and in such case there can be no conviction for the offense charged against the defendant in this case. The indictment must allege, and we think the better doctrine is the state must prove in the first instance, that the woman alleged to have been seduced is of “good repute.” 1 Bish. Crim. Proc., secs. 1103-6; Bish. Stat. Cr. [2 Ed.] sec. 648; State v. Hill, supra. It is true the law presumes that every woman is chaste and of good repute, till the contrary appears ; but so also does the law presume every one to be innocent of crime, till he be proven guilty. Hence we have one presumption nullifying the other, and in criminal trials the presumption of the innocence of the accused must x>revail, till it be overcome by evidence beyond a reasonable doubt.

Indeed, it seems no great hardship on the state to require it, when an attempt is made to send a man to the penitentiary for seducing a woman under promise •of marriage, to allege and prove in the first instance, that the woman alleged to have been seduced is of ■“good repute.” This conclusion seems better to accord with the legal analogies and reason than the contrary •doctrine. Evidence of the previous chastity of the seduced woman, which is required in some states, must in the nature of things be only slight, but there can be no difficulty in proving “good repute,” as required by our statute, if the woman be of “good repute.”

III. The instructions refer the jury to the indictment to determine what they must find in order to convict. This is error. It is the duty of the court, in plain and concise language, to define the offense accurately and tell the jury the essential facts necessary to be found to authorize a conviction. That was not done in this case.

The judgment is reversed and cause remanded.

All of this division concur.