State v. Whitley.

Apr 17, 1906

Versions:141 N.C. 823

53 S.E. 820

1906 N.C. LEXIS 167

Clark, C. J.

Thе indictment follows the exact words of the statute. Revisal, sec. 3354. The added words аre mere surplusage and do not-affect the bill. Revisal, sec. 3254, forbids the arrest of judgment “by reason of any informality or refinement.”

*825 In State v. Ferguson, 107 N. C., 850, the court says: “The crime does nоt consist in the sexual intercourse nor in the seduction, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍nor in the innocence and virtue of the woman, but in committing the act under 'promise of marriage, without which no crime is created by the statute, and which alone makes the seduction criminal.” It was clearly competent for the prosecutrix to testify under what inducement and circumstances she yiеlded to the defendant, the truth of her statement. being a matter for the jury.

The statemеnts made by the prosecutrix to her mother were competent to corrоborate her testimony on the trial. As to the fourth and fifth exceptions, the witness had not testified as to the general character of'the prosecutrix, and it was nоt competent to ask him (unless perhaps on cross-examination if he had been such character ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍witness) whether there was not a report in the neighborhоod derogatory to her character. If she were not a virtuous and innocent woman, that fact could not be shown by hearsay, by a mere report that she had permitted, on a certain occasion, familiarities to be taken with her person, not amounting to sexual intercourse.

The first special instruction asked by the defendant was properly refused. If the prosecutrix had permitted the familiаrity recited in the prayer, it did not amount to incontinence in fact, and the cоurt could not tell the jury that it amounted to such as a matter of law, but correctly told the jury that evidence of such conduct, if believed, was a matter to be considered by them in passing upon the question whether she was a virtuous woman within the meaning of the statute. This indeed was in accord with the second prayer of the defendant, which was substantially given.

The seventh exception cannot be sustained. In State v. Crowell, 116 N. C., 1058, the court said: “The law looks at conduct and motive only аs shown by conduct, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and not at thoughts undisclosed and natural impulses not acted on. *826 The precedents sustain the definition given by the court, that an innocent and virtuous womаn is one who never had illicit intercourse with any man and who is chaste and pure (State v. Ferguson, 107 N. C., 841), аnd properly refused to go further and charge that the prosecutrix must have hаd ‘a mind free from lustful and lascivious desires.’ ” A woman may not resent language and familiarities in some stations in life, which conduct in other circumstances and surroundings would lead a jury to infer that she was not virtuous and innocent. Such testimony does not amount in la.w to her being not a virtuous and innocent woman, and the court could ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍go no further than tо leave the evidence to the jury. Any inference that could be drawn from it is an inference of fact, and could be drawn only by the jury, not by the court. A woman may use vulgаr language and submit to familiarities, if such is the custom of her society, and yet be of impregnable virtue. “Bundling,” where it is the custom, is no proof of immorality, though it would be strong evidence where such custom is unknown.

The court refused a prayer, “that in order to find from the evidence that the prosecutrix is not a virtuous woman, it is not necessary fоr the jury to find that she had ever had actual sexual intercourse with any other person than the defendant,” and correctly charged that “a virtuous woman is one who had never had illicit intercourse with any man,” and that “an innocent woman means that, although there may have been a marriage contract, yet if the prosеcutrix yielded on account of lust or from any other motive than of the promise of marriage, she would not be innocent within the meaning of the statute.” Whether or nоt His Honor did not interchange the words “virtuous” and “innocent,” the defendant cannot complain of a harmless error. The gravamen of this offense is the seduction оf an innocent and virtuous woman under promise of marriage. His Honor charged that the prosecutrix ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍must be fоund by the jury to *827 be both virtuous and innocent, and that sbe did not yield her person to the embraces of tbe defendant from lust or any motive or inducement other than.the promise of marriage.

No Error.