53 S.E. 820 | N.C. | 1906
The indictment alleged that on a designated day defendant did with force and arms at and in a certain county unlawfully, willfully, and feloniously seduce one Flora C. Eudy, an innocent and virtuous woman, under promise of marriage to the said Flora C. Eudy, made by him, the said Devotion Whitley, against the form of the statute and the peace and dignity of the State. Defendant moved in arrest of judgment on the *626
ground that the indictment did not allege a marriage contract because the allegation following the statement that the seduction was under a promise of marriage reduced the effect of the allegation as to promise to a mere proposition on the part of one of the parties. On the trial, the mother of the prosecutrix was allowed to testify that after she discovered her daughter to be pregnant the daughter had told her that defendant had promised to marry her and that she loved him. On cross-examination of the witnesses for the State the defendant's counsel asked the witness if he had not heard a report in the community that prosecutrix would permit young men to take indecent liberties with her. The question was excluded, and defendant excepted.
The indictment follows the exact words of the statute. Revisal, sec. 3354. The added words are 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 S. v. Ferguson,
The statements made by the prosecutrix to her mother were competent to corroborate 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 not competent to ask him (unless, perhaps, on cross-examination if he had been such character witness) whether there was not a report in the neighborhood 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 familiarity recited in the prayer, it did not amount to incontinence in fact, and the court could not tell the jury that it amounted to such as a matter of law, but *627 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 S. v. Crowell,
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 for 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 prosecutrix 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 not 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 of an innocent and virtuous woman under promiseof marriage. His Honor charged that the prosecutrix must be found by the jury to be both virtuous and innocent, and that she did not yield her person to the embraces of the defendant from lust or any motive or inducement other than the promise of marriage. (827)
No error. *628
Cited: S. v. Raynor,