108 Mo. 640 | Mo. | 1891
The defendant was sentenced to imprisonment in the penitentiary for two years, for seduction under promise of marriage, at the June term, 1890, of the circuit court of Montgomery county, on change of venue from Lincoln county, and the case is before this court on defendant’s appeal.
I. The first assignment of error is that the testimony of Alice Cook, the prosecutrix, shows she was
The prosecutrix was shown to be of good repute. Her mother and father testified that defendant asked their permission for him to marry her, which they .gave. At the time of the alleged seduction, defendant was boarding at the girl’s home, which consisted of one room. The defendant offered no evidence whatever to contradict the testimony of the prosecutrix as to her seduction, or to contradict or disprove the testimony of the prosecutrix and her mother and father as to the promise of marriage, nor the testimony as to the good repute of the prosecutrix at the time of, and prior to, the alleged seduction. There was some evidence tending to prove improper conduct, but nothing criminal on her part, toward one Price Hill, several months after the •alleged seduction, but Price Hill and che girl deny that she was guilty of the conduct charged.
Upon this state of facts the court is asked to declare as a matter of law, that defendant is not guilty of the •crime with which he is charged. The contention is that the prosecutrix bartered her chastity to defendant as the price of the marriage,'and because she did this he committed no crime.
In the case of State v. Eckler, 106 Mo. 585, we had •occasion to consider the identical question here presented, and we came to the conclusion that a man is g’uilty of the crime of seduction under promise of marriage, when the female yields to sexual intercourse by reason or by virtue of the promise of marriage, and would not have so yielded except for the promise. After a careful review of the reasons given and authorities cited in the Bolder case, we adhere to the doctrine there laid down. In some respects the conduct of the
But, in some respects, the facts in this case make the defendant’s conduct more reprehensible than that of Eckler. In the Eclder case the female was over twenty years of age. In this case the female was under eighteen. In that case the evidence outside of that of the prosecutrix as to the promise of marriage was very meager, and defendant went on the stand as a witness and denied making such promise. In this case the promise of marriage was proven positively by the prosecutrix, her mother and father, and there was not a particle of evidence on the defendant’ s part to the contrary. In that case the state in the first instance did not prove the good repute of the prosecutrix, and, in rebuttal, the evidence of her good repute was not strong. In this case the state proved by several witnesses that the prosecutrix was of good repute, and not a single witness in the case on either side testified to the contrary.
We will not repeat here what we said in the Eclder case, but will supplement what was there said with a further discussion of the principle involved and a citation and review of other authorities in support thereof.
Judging from the tone of the aigument of defendant’s attorney we conclude he has misconceived the whole scope, intent and purpose of the statute under which defendant was indicted. His argument conveys to our minds the idea that the statute was intended to avenge the wrongs of the seduced female. This is not the object of the statute. We rejoice that the element of .revenge in punishment inflicted by the state has been eliminated by all systems of enlightened jurisprudence of tó-day. The state punishes, and has a right to punish alone, to prevent crime and protect society. So far as the seduced female is concerned she is ruined, with a
We all say she did wrong, sinned grievously, and grievously has she paid the penalty. Nature and society and her conscience have laid heavy burdens upon her. She lost her lover in whom she confided ; she bore the pains of pregnancy and then went down almost into the valley and shadow of death in passing through the terrible ordeal of maternity. She brought shame and disgrace upon her parents and sisters, and she is now, no doubt, a social outcast, with no hope for the future. But how is it with the defendant? He promised this girl of seventeen to make her his wife, and from November to March plied her with his pledges of love and promises of marriage to induce her to yield to his embraces. He succeeded'finally. What punishment has he received? None except such as a guilty conscience inflicts. Did he commit no crime because the girl consented ? Her consent is no excuse, for the statute ex m termini implies that the consent of the girl is obtained. If she does not consent, intercourse with her is rape. Her consent is no defense because
Defendant played a false part. He made a false promise of marriage to the girl. Did she have “debased and brutal desires % ” Then why the necessity for a false promise of marriage, or any promise at all, for that She confided in him. He deceived her. She had faith in his promise. He debauched and then betrayed her. Call you that no crime against her ?
But this controversy is not between Alice Cook, on one side, and the defendant on the other. It is the state-that complains, not for the purpose of avenging the wrongs of Alice Cook, but to preserve the morals and good order of society. Did the defendant commit a crime against anyone else but the girl, for which the state ought to interpose % Let us see. Alice Cook lived in a very humble home, indeed, as is evident from the testimony in this record. She worked out as a domestic servant. Mother, father, three girls and the defendant all slept in one room. The mother of the giii, -when
The question is not whether Alice Cook did wrong. The question is whether defendant has committed a crime or not. The state could have provided a punishment for Alice Cook’s act, if it had seen proper. That act was immoral. She committed a, fearful wrong against herself, her mother and father, her sisters; her home; but defendant committed a fearful wrong, too,
How far the government should go in the protection • of one person against his own folly or weakness or inexperience is of course a mooted question, and will, no ■doubt, remain a mooted question for centuries to come, if not for all time. We have not fixed any definite limits yet. But the government now does by its civil and criminal laws constantly interpose in many cases to protect men and women against their own folly, weakness or inexperience, and this, too, in defiance of the doctrine of volenti non jit injuria. Only a short time ago did we, by a unanimous opinion in the Burgdoerfer case, sustain a law whose sole object was to protect men against their own folly, weakness and inexperience. The pool-seller under that law is guilty of crime, though he sell to willing buyers.
Men, educated and chivalrous men, brave men. of experience, cannot voluntarily consent to the infliction of injury upon their persons. It is made a felony to fight a duel. If men who have reached years of maturity, men of experience and learning, cannot consent to the infliction of a wound upon their bodies, much less can a girl, seventeen years old, consent, in its legal sense, to the pollution of her body, and the
At common law the parent has a right of action against the seducer of his daughter, though the latter freely and fully consent, and in such action he can recover damages not only for the loss of services of the daughter, bub also for distress of mind sustained by being deprived of the society and comfort of his child, and the dishonor he receives on account of her defilement. Hence, we find a distinct recognition, in law, of the wrong the parent sustains apart from, and not-dependent on, the wrong the daughter receives. A money penalty is, however, inadequate to the offense of seduction. This consideration has led to the enactment in most of the states of laws which make illicit sexual intercourse punishable under certain circumstances as a crime. Our statute reads, “If any person shall under or by a promise of marriage seduce and debauch any unmarried female of good repute under eighteen years of age,” he shall be guilty, etc. Prior to the revision of 1889, the age of the female was fixed at twenty-one years. This provision in all essential particulars exists in New York, Iowa, Minnesota, Virginia, Wisconsin, Oregon, Indiana, Mississippi, Texas and Pennsylvania, except in some of them the age of the female is immaterial. We reviewed in the Eckler case the decisions in New York and Indiana construing the statutes in those states, from which it will be seen that, if the female submits to carnal intercourse by reason and in consideration of the promise of marriage, the crime is complete.
And again in State v. Bell, 44 N. W. Rep. 244, the supreme court of Iowa uses this language in reference to this crime: “ Some stress is laid upon the claim that the prosecutrix was older and more experienced than the defendant. They were both of mature years, he but little younger than she, and a widower with two children. Neither should be heard to urge want of age and experience in excuse of their wrong.”
In Commissioner v. McCarty, 2 Pa. L. J. R. 351, Lewis, P. J., speaking of the Pennsylvania act .in regard to seduction under promise of marriage says: “The act of the assembly was loudly called for by the frequent perpetration of this great public and private wrong. * * * Seduction by means of a promise of marriage is a grievous offense. The violation of such a promise may not differ in principle from other breaches of solemn engagements; * * * but there is a great difference in the degree of wrong inflicted upon society, and upon the individual who is induced to confide in the promise, and to surrender to her destroyer all that is estimable in woman, and all that makes her existence even tolerable. * * * It must appear to the satisfaction of the jury that the seduction was accomplished by means of a promise of marriage.
The supreme court of North Carolina, in State v. Horton, 100 N. C. 443, held that the statute contemplates a seduction by means of a promise of marriage in the nature of a deceit. Consent is no defense if the seduction is proved.
In State v. Timmens, 4 Minn. 325, it appeared the prosecutrix had carnal intercourse with defendant and claimed to have reformed, and then under promise of marriage repeated such intercourse with him. The court says: “When a man enlists the affections of a woman, and by promising to make her his wife creates between them the most confidential and sacred of relations, and by this means succeeds in obtaining from her concessions, sinful and impure, it is true, but from their very guilt proof of the depth of the love and confidence which extorted them, and aggravates his treachery by continuing before his victim the delusive hope that he will yet redeem his pledge, and thus compels her to yield anew, until at last his infidelity is rendered certain by his marriage with another, and she in the desjjair of .exposure and shame calls him to an account before a court of justice, the law will be slow to permit him to object, that by reason of her acts, continued perhaps to shield him from disgrace, she was a woman of unchaste character.”
The supreme court, of Texas, in Cole v. State, 40 Tex. 147, says: “The promise of marriage is an important element in the definition of the statutory offense, and it must appear that the female alleged to have been seduced yielded alone to the solicitation of the other party in consideration of his promise to marry her.”
In Oregon, in the case of Parker v. Monteith, 7 Or. 277, it was held competent to prove that the defendant promised to marry plaintiff’s daughter, when by reason of such promise he succeeded in seducing her.
In Michigan the statute reads : “If any man shall seduce and debauch any unmarried woman,” etc., and speaking of this statute in People v. DeFore, 64 Mich. 693, the supreme court of that state said: “ Under this statute, the offense is committed, if the man has. carnal intercourse to which the woman assented, if such assent was obtained * * * by the man at the time, and to which, without such promise, she would not have yielded. * * * If she resists but finally assents or yields, induced thereto or in reliance upon the promise made, the offense is committed.”
After a full review of the above authorities and those cited in the Eckler case, and after a careful examination of the evidence in this record, we have no hesitancy in holding that there was ample testimony to take the case to the jury, and the court committed no error in refusing to instruct the jury that defendant had not committed the crime charged.
II. The defendant certainly has no right to complain of the instructions, for the court went much further than the law justified it in favor of defendant’s
III. After the jury was impaneled and sworn to try the case, Mr. Avery, the prosecuting attorney, made his opening statement to the jury. When Mr. Avery had ■concluded his statement, a note was handed to Judge Hughes, who was presiding at the trial. Judge Hughes read the note, and said to the counsel for both sides, in the presence and hearing of the jury: “ Gentlemen, a member of the family of Mr. Ben. Slavens, one of these jurors, is very sick; his mother-in-law is about to die. Are both sides willing that he be discharged, and can you agree upon another juror; or will you have another full panel?”
Both sides consenting to the withdrawal of the juror, he was excused from the jury. Mr. Hughlett asked Mr. Dryden, defendant’s attorney, privately, if he consented to the excusing of the juror. Mr. Dryden said: “I propose to save the point.” Thereupon, Mr. Hughlett and Mr. Dryden went together to the judge, to whom Hughlett said: “ Dryden does not consent to this.” Judge Hughes said: “Mr. Dryden, I understood you to consent to the withdrawal of this juror. If you do not, I will call Mr. Slavens back and keep him on the jury'and let the trial proceed.” Thereupon, Mr.'Dryden’said : “I-will consent, and will not raise the point.” The foregoing conversation between the judge and Dryden and Hughlett was not heard by the jury, but was private. Thereupon, Mr. Hughlett said, in open court, and in the presence and hearing of the jury: “Now, let us call jurors from the bystanders until a juror is found to whom both sides agree, and will serve in Slavens’ place.” The defendant’s counsel consented to this.
Thereupon, Prank Sabourin, the first man called from the bystanders, qualified, and was accepted by
The judge, if the exception had been saved at the time of the privy conference, could have assumed the responsibility of retaining the juror, and he could have done it consistently, too, and thus defendant would have been relieved of the dilemma in which he was placed by the judge’s first remark. At the time no one supposed that the retention of Slavens on the jury would be of peculiar benefit to either side, and for that reason, no doubt, defendant’s attorney said, “I will consent, and will not raise the point.” Another
IY. Exception was taken to the speech of Mr. Hughlett, prosecuting attorney of Montgomery county. Nat. C. Dryden, Esq., and Mr. Robert Shackleford made affidavit setting out what Mr. Hughlett said that was objectionable. According to their recollection of the speech Mr. Hughlett made some remarks that were not calculated to add to the dignity and decorum that should characterize a temple of justice, but the latter made a counter-affidavit in which he denied saying the most of what the other affiants charged him with saying, and two other affiants supported him. The court overruled this objection without giving any reason for it and without certifying to us what Mr. Hughlett did in fact say. It is impossible for us from this record 'to deter-, mine whether the speech was what Messrs. Dryden and Shackleford say it was, or whether it was what Mr. Hughlett and those who supported him say it was. Interference with the arguments of attorneys should not be indulged, except where it manifestly appears the privilege has been abused, and whether it has been abused or not must necessarily be left largely to the trial j udge who is in a position to know, in the first place what was said and the reasons for it being said, and in the second place to know whether remarks of attorneys have operated to the prejudice of the losing party. And especially an appellate court ought not to interfere with the. discretion of the trial court, unless the record unequivocally shows what the remarks claimed to be prejudicial were, and the circumstances under which they were made.