State v. Wallace

154 P. 430 | Or. | 1916

Mr. Justice Benson

delivered the opinion of the court.

1. It is contended by appellant that, since it appears conclusively from the record that at the time of the commission of the alleged crime the prosecutrix was a divorced woman, she was not “an unmarried female” within the meaning of the statute, and that therefore the defendant was entitled to an instructed verdict of acquittal. The statute under which the prosecution is maintained provides that:

“If any person, under promise of marriage, shall seduce and have illicit connection with any unmarried female of previous chaste character, such person, upon conviction, shall be punished,” etc.

Our attention has been called to but one reported case directly in point, namely, Jennings v. Commonwealth, 109 Va. 821 (63 S. E. 1080, 132 Am. St. Rep. 946, 17 Ann. Cas. 64, 21 L. R. A. (N. S.) 265), in which it was held, under a statute practically identical with ours, that the phrase “an unmarried female” should be construed to mean a woman who has never been married, and that the seduction of á divorced woman is not a violation of the law. In Pratt v. Mathew, 22 Beav. 328, it is said that the word “unmarried” does not necessarily mean “without having been married,” and that no fixed meaning can be assigned to it, but it must be determined according to the circumstances of the case. This authority has been cited with approval by many of the courts, and indeed is approved in the case of Jennings v. Commonwealth, 109 Va. 821 (63 S. E. 1080, 132 Am. St. Rep. 946, 17 Ann. Cas, 64, 21 L. R. A. (N. S.) 265), in which case the court argues that since a divorced woman has necessarily had experience in the lecherous ways of men, she is immune from their wiles and does not need the protection of the law. We cannot agree with this interpretation, however, for the spirit of the law does not and cannot take into consideration the wisdom and experience of those whom it undertakes to protect from wrong. We entertain the view that law is intended for the safeguarding of the virtue of the chaste widow just as much as for that of the woman who has never been a wife.

2. Upon the trial the defendant requested the court to charge the jury as follows.:

“That the letters alleged to have been written by the defendant to prosecutrix were not identified or proved to be letters of the defendant except by the prosecutrix’s testimony; hence they do not afford evidence corroborating prosecutrix’s testimony.”

This instruction was refused, and such refusal is assigned as error. The record discloses that certain letters were introduced in evidence which, according to the testimony of prosecuting witness, were written by the defendant and received by her through the mails. No other evidence was offered as to the identity of the missives, and they were relied upon by the state to corroborate the prosecutrix as to the essential elements of the crime charged. We have found but few cases which discuss the question thus presented, but all of those to which our attention has been called support defendant’s contention. - In a case similar to the one under consideration the Court of Criminal Appeals of Texas says:

“The prosecuting officers evidently relied on the letters said to have been written by appellant and introduced in evidence. Miss Harrison testified that the letters were written by appellant, and this rendered them admissible in evidence; but could they be used to corroborate her, when she alone testified that they were written by appellant? Eliminate her testimony, and the letters go with it. If it was desired to use the letters as corroborative testimony, some evidence, other than that of Miss Harrison, should have been introduced, tending to show that appellant wrote the letters. An accomplice cannot corroborate herself. And • no testimony she gives can be so used. * * This charge should have been given”: Bishop v. State, 151 S. W. 821.

To the same effect are the cases of Smith v. State, 58 Tex. Cr. R. 106 (124 S. W. 919); Rogers v. State, 101 Ark. 45 (141 S. W. 491, 49 L. R. A. (N. S.) 1198); Carrens v. State, 77 Ark. 16 (91 S. W. 30); James v. State, 72 Tex. Cr. R. 155 (161 S. W. 472). We conclude, then, that the court erred in refusing to give the instruction as requested, and the judgment is reversed and the cause remanded for a new trial.

Reversed and Remanded.

Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice-McBride concur.