State v. Teal
95 S.E. 69
S.C.
1918
Check Treatment

*466 The opinion of the Court was delivered by

Mr. Justice Gage.

The defendant was found guilty of seduction by means of deception and promise of marriage. The judgment was 3 years imprisonment. The defendant has appealed.

There are 18 exceptions, but the argument expressly makes the following issues, stated in dependent order, to wit: (1) The question of corroborating testimony was wrongfully left in the first instance to the jury, when it ought to have been decided by the Court. (2) The Court admitted incompetent testimony for corroboration, to wit, the testimony of the woman’s father as to the defendant’s confessions, and the proferí of the woman’s child; and there was admitted insufficient testimony for corroboration, to wit, the signature of the defendant on his appearance bond. (3) There was no corroborating testimony; and for that reason a verdict ought to have been directed. (4) The promise to marry which the woman testified to was one conditioned upon her becoming pregnant from the intercourse, and for that reason a verdict ought to have been directed. (5) The intercourse was lewd, and for that reason a verdict ought to have been directed. (6) The trial Judge in his charge violated the constitutional inhibition to charge in the facts, in that the Judge charged the jury that it was their duty to convict irrespective of the evidence. (7) The judgment pronounced by the Court is not warranted by law. These in their order.

1 It is true, as was held in the Livingston case, 105 S. C. 251, 89 S. E. 550, and the Turner case, 82 S. C. 280, 64 S. E. 424, 17 Ann. Cas. 88, that the Court must first judge of the existence of any corroborating testimony before the cause goes to the jury; and, if there be none such, the cause ought not to go to the jury. And it may be that in the instant case the Court did not expressly so rule; but the truth is the Court so held by necessary implication, for the issue of defendant’s' guilt was sent to the jury, and, *467 that being so, it would be an idle performance for us to now reverse the judgment because that Court did not in advance expressly hold that there was corroborating evidence, especially now that we hold that there was such testimony.

2 The woman’s father testified that the ' defendant confessed to him that he had promised to marry the woman, and that the defendant had ruined the wisness’ home. This transaction was at the father’s house, at Traveler’s Rest, in Greenville county, in January, 1917, after the defendant had been brought there from Harts-ville by the woman’s two brothers, in an automobile, and without process of law. The suggestion is that the defendant was under duress, and the confession was involuntary. There is no evidence of duress, except as that inference may be drawn from the father’s testimony. There was no other witness who testified to the transaction. The Circuit Judge who saw the witness thought that the confession was voluntary, and there is no room to hold the contrary.

3 The woman’s child had then been born; the defendant had then been married to another woman; the fire ablaze in a father’s heart at the first discovery of so flagrant a wrong had turned to ashes; he testified that his' sons were not then angry, but were flustrated; and he testified the defendant was not then terrified, but was penitent. These were subjects upon which the witness could testify by opinion, for they rest in opinion. So deplorable an event in the home might have inflamed one caste of kindred to have speedy and dire vengeance; but another caste, of equal virtue, might have suffered and waited. The Court saw the actors, and could best judge of the character of the confessions.

*468 4 *467 The child, born early in December, 1916, and 9 months after the association with the defendant in the last of Feb *468 ruary or the first of March, was allowed in evidence. The defendant objected to profert of the child, but assigned no specific ground for the objection. The Court ruled that the child was competent to show the woman had a child, “as the law requires corroboration.” The Court also said: “I understand you simply present that child and ask the prosecutrix if that is her baby, and for that purpose only.” The Solicitor answered that the child was offered to prove seduction. The ruling of the Court was made a ground for a motion there for a new trial; and the Judge then said:

“The baby was not exhibited to the jury; on the contrary, the Court only admitted that to show that she had given birth to a child; it was not to show similarity.”

The action of the Court was clearly within the ruling in State v. Whitaker, 103 S. C. 213, 87 S. E. 1001. In the cases cited by the appellant the child was exhibited to prove that it had the features of the alleged father; and the Courts of Wisconsin held that relationship could not be shown in that way.

5 The other challenged testimony is the signature of the defendant on his appearance bond. The exceptions do not challenge the competency of that signature. The argument questions the value of the signature as a corroborating circumstance. The signature was of utmost relevancy. The genuineness of the three letters of the defendant, hereafter referred to, had to be established by other testimony than the woman’s to render them corroborative testimony. If the same hand signed the letters which signed the bond, then the letters were competent if their contents corroborate the testimony of the woman. The bond was signed “Archie,” and two of the letters were so signed; the jury saw both.

The opinion we have announced with reference to the competency of the testimony tends, in large measure, to set- *469 tie the next question, and that most seriously argued, and that we have marked “3.”

6 We are of the opinion that there was ample testimony to' 'corroborate the woman, both as to the seduction and the promise to marry, and that the Court was right to submit the issue of the defendant’s guilt to the jury. Jones, in his admirable work on Evidence, defines corroborative testimony to be “additional evidence, of a different character, to the same point.”

7 The confession of the defendant, the birth of a child, and the defendant’s letters, were all testimony of a different character from the woman’s. Of the three letters of the defendant put in evidence one was written before the alleged seduction, and two were written after that event. It is not needful to reproduce them here; it is sufficient to say that they are of the most deceitful character, and that they tend to prove that the defendant bought a ring for the girl, and then put her away and declined to marry her, on the false ground that in spite of his profession of love for her that he could not “do a thing that might cause you not to live a happy life.”

8 Without further recitation we conclude that there was ample testimony tending to prove that the parties had sexual intercourse — the whole cross-examination assumed that — that it came about by the artifice of the defendant, and upon his promise to. marry the woman. That constitutes the offense under the statute.

9 Further, it is argued for a directed verdict that the promise to marry was made upon condition, and the condition was the pregnancy of the girl. It is true that if such was the case, then there was, of course, no promise to marry that would support this prosecution.

*470 10 *469 It is true, also, thaf the woman testified that no particular day had been set for the marriage. But it is common knowl *470 edge that the promise to marry goes-before a fixed day of marriage, and that the essential thing is the promise, and it may exist when no day has been set for its execution.

1’t is also true that the woman, upon her cross-examination, did answer “Yes” to questions which suggested a promise to marry conditioned upon pregnancy. But to the State’s counsel she repeatedly and deary swore that the defendant promised to marry her weeks before there was ever any cohabitation.

11 The appellants furthermore pressed the argument that the only reasonable conclusion to be drawn from the testimony was “that the alleged intercourse was by mutual consent,” was lewd, lustful and habitual; and counsel say that was a question of law for the Court. That surely is not the law. It is too true that the parties to this transaction practiced gross immorality; she admitted the fact for herself; the defendant’s counsel in effect admitted the fact for him. There is no suggestion by testimony or by argument that the woman was unchaste before she fell under the influence of the defendant. At that time she was but a country girl; she had never attended any but a neighborhood school; she lived in a remote section, and had not learned-the wiles of men. The defendant was a graduate of Clemson College, 25 years old, and had got a glimpse'of the world. He was a guest in the woman’s home. The crisis in her life was the last of February or first of March, 1916. If she was then chaste, and the defendant’s letter to her said she was then “perfect;” if she then gave her soul and body to the defendant, and the event proves it, and because of his expressed love for and promise to marry her, and all the circumstances show it — then the law does not abandon her because, having stooped to one act of folly, she found too late that men betray, and abandoned herself freely to the will and lust of her seducer. The defense really is, the greater *471 the ruin the less the remedy. One step off a precipice requires no count two steps.

12 The exceptions which challenge the charge of the Court as recited in the aforesaid sixth ground are of no force. Let the charge be reported; there is nothing in it which trespassed upon the facts; and there is nothing in it which suggested to the jury to find a verdict against the testimony.

13-15 The only oilier issue made by the arguments relates, not to the trial and to the verdict, but to the judgment of the Court. That ought to be reported.

The statute authorizes fine or imprisonment “at the discretion of the Court.” Cr. Code 1912, sec. 389. The judgment was 3 years imprisonment. It is not clearly manifest that such a judgment is too severe, and it will, therefore, not be disturbed; the offense was great.

The further direction of the judgment was expressly not for additional penalty; it was done pursuant to the wide discretion lodged in the Court by the act of 1912. 27 Stats. 773. That act is the sequel of State v. Abbott, 87 S. C. 466, 70 S. E. 6, 33 L. R. A. (N. S.) 112, Ann. Cas. 1912b, 1189. In that case the Court said:

“The legislative power to set punishment for crime is very broad, and in the exercise of this power the General Assembly may confer on trial Judges, if it sees' fit, the largest discretion as to the sentence to be imposed, as to the beginning and end of the punishment, and whether it should be certain or indeterminate or conditional.”

The act provides':

“Circuit Judges of this State shall have the power and authority, in their discretion, to suspend sentences imposed by them, upon such terms and upon such conditions as in their judgment may be fit and proper.” Act February 15, 1912 (27 St. at Large, p. 773).

If the condition named for a suspension is too hard, the defendant may accept the full 3 years of service; if the con *472 dition for a suspension is agreeable, the defendant may accept it, and forego a part of the term of service. In either event, no larger penalty is put on the defendant; he has the advantage of election between penalties.

The judgment of the Circuit Court is affirmed.