State v. Reilly

Dec 15, 1897

Reporters:: ,
Before:: Deemer

Deemer, J.

1 The prosecuting witness testified that she was induced to surrender her virtue by reason of a promise of marriage, and, in response to- a question, sa,id that she had to-ld her friends that she intended to marry defendant. Defendant moved to strike out this answer. The trial court reserved its ruling, and it does not appear that the matter was ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍again called to its attention. As there was neither ruling nor exception, the defendant cannot complain.

*152 *14II. Counsel, upon cross-examination, asked the prosecuting -witness whether she had ever thought, from the conduct of defendant, -and from what he had *15said to her prior to her alleged seduction, that he desired to have connection with her. Objection to this question was sustained, but the court said that counsel might show, if they could, what defendant’s object and purpose was in going with her. This they attempted to- do by further interrogatories, and we see no ground for complaint.

3 III. A doctor who made an examination of the prosecutrix was permitted to testify that‘she (the prosecutrix) said to her (the doctor) that she was unmarried. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍The error, if any, in this, was cured by subsequent evidence from the woman herself that she was unmarried.

4 IY. A witness was permitted to- state, over the defendant’s objection, that the neighbors -and three certain strange young la-dies told her that they had heard that the prosecutrix was engaged to marry the defendant. This same witness testified, over defendant’s- objection, that the prosecutrix and a lady by the name of Oster had both to-ld her that defendant and the- prosecutrix were to- be married. These rulings were clearly erroneous. Thereafter the court struck out the evidence -a-si to- what the neighbors said, and also instructed the jury that the evidence of this witness as to what neighbors had said, and all ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the evidence of other witnesses as to reputation, or talk or absence of talk, among neighbors of the parties; as to their being engaged‘, wasi withdrawn from their consideration, and should not be considered for -any purpose. It will be noticed that the statements made by the witness as to what the three strange ladies, the prose-cutrix, and Miss Ost-er said about the matter were not withdrawn; and the -error in allowing this evidence to stand was not cured by instructions or otherwise. Some other rulings on the- -admission and rejection of evidence are questioned. None of them are of sufficient *16importance to demand separate consideration, and we dismiss them w’itli the statement that we see no error.

Y. Certain of the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍instructions are assailed. Without setting them out, it is; sufficient to; say that we discover no error prejudicial to the defendant.

5 YI. The court instructed that the case rested entirely upon an alleged promise of marriage, and that, if the prosecutrix assented to the intercourse upon the promise of the defendant to marry her should pregnancy result therefrom, then the verdict should be, Not guilty. These instructions constituted the law of the case, and, whether right or wrong, it was the duty of the jury to follow them. We find, on looting to the evidence, that while the prosecutrix testified that she yielded her virtue because of a promise of marriage, yet she said that this promise was a conditional one, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to the ‘effect that he (defendant) would marry her if she would let him have intercourse with her and he got her in a family way. The condition was a part of the promise, according to her own evidence; and the jury should have found the defendant not guilty, under the instructions referred to. For the errors pointed out, the judgment is reversed.