| Ark. | Jun 29, 1914
(after stating the facts). 1. Counsel for appellant contends that the only promise of marriage made by appellant to the prosecutrix was the conditional one to the effect that he would marry her in the event that she became pregnant, and that the sexual intercourse was • obtained by appellant with the prosecutrix upon such promise, and that sexual intercourse obtained on a conditional promise is not seduction under our statute. Appellant’s contention as to the law is sound.
The most effective snare which the licentious fowler could set in the way of chaste and unsuspecting females to draw them from the path of virtue is in the form of a false or feigned express promise of marriage. Doubtless more innocent and confiding girls and women have been caught in that trap than any other. Hence, the Legislature enacted our statute making it a penitentiary offense to obtain carnal knowledge of any female by virtue of any feigned or express promise of marriage. (Kirby’s Digest, § 2043.) But the statute was leveled at the particular crime of obtaining carnal knowledge of a chaste female through an express promise of marriage. Its purpose was to protect virtuous womanhood, and not to prevent sexual intercourse with a female who was already unchaste. A lack of chastity in the female constitutes a perfect defense to the charge of seduction under this statute. See Polk v. State, 40 Ark. 482" court="Ark." date_filed="1883-05-15" href="https://app.midpage.ai/document/polk-v-state-6541312?utm_source=webapp" opinion_id="6541312">40 Ark. 482; Puckett v. State, 71 Ark. 62" court="Ark." date_filed="1902-11-29" href="https://app.midpage.ai/document/puckett-v-state-6544725?utm_source=webapp" opinion_id="6544725">71 Ark. 62; Walton v. State, 71 Ark. 398" court="Ark." date_filed="1903-06-06" href="https://app.midpage.ai/document/walton-v-state-6544805?utm_source=webapp" opinion_id="6544805">71 Ark. 398; Caldwell v. State, 73 Ark. 139" court="Ark." date_filed="1904-12-03" href="https://app.midpage.ai/document/caldwell-v-state-6545046?utm_source=webapp" opinion_id="6545046">73 Ark. 139; Rucker v. State, 77 Ark. 23" court="Ark." date_filed="1905-11-04" href="https://app.midpage.ai/document/rucker-v-state-6545610?utm_source=webapp" opinion_id="6545610">77 Ark. 23; Wilhite v. State, 84 Ark. 67" court="Ark." date_filed="1907-07-08" href="https://app.midpage.ai/document/wilhite-v-state-6546533?utm_source=webapp" opinion_id="6546533">84 Ark. 67; Oldham v. State, 99 Ark. 175" court="Ark." date_filed="1911-05-01" href="https://app.midpage.ai/document/oldham-v-state-6548475?utm_source=webapp" opinion_id="6548475">99 Ark. 175.
If a woman consents to the act of sexual intercourse upon a promise of the man to marry her only in the event that pregnancy results from it, then the promise is based upon a condition that might not arise. Where a woman yields to sexual embraces upon such promise she is not sacrificing her virtue alone because of a desire to marry the man to whom she yields, but, in such case, she is indulging her lustful passion and is resting upon the promise of marriage only for protection and assistance when her disgrace shall have been discovered. But this statute can only be invoked by the female who to the very time of her fall had held her virtue, so to speak, as “the immediate jewel of her soul,” and who was only induced to surrender it through the promise of the man whom she trusted to marry her and solely from a desire to have him keep that promise. The woman who yields her virtue for sexual pleasure and uses the promise of marriage only as a cloak or subterfuge to hide her disgrace is not within the pale of the protection of this particular statute. As was aptly said by the Supreme Court of Oregon in construing a similar statute: “Its design is to protect the chaste woman from the assaults of a wicked and designing man who makes use of the most potent of all seductive arts to win the love and confidence of a woman by professions of love and marriage, and not one who is willing to gratify her own lustful desire.” State of Oregon v. Adams, 22 L. R. A. 840.
In the latter case it was held that sexual intercourse accomplished on promise of marriage conditioned on pregnancy resulting is not within a statute making seduction under promise of marriage a criminal offense. The same was held in People v. Van Alstyne, 39 N.E. 343" court="NY" date_filed="1895-01-15" href="https://app.midpage.ai/document/people-v--van-alstyne-3583225?utm_source=webapp" opinion_id="3583225">39 N. E. 343. See, also, People v. Duryea, 30 N.Y.S. 877" court="N.Y. Sup. Ct." date_filed="1894-10-26" href="https://app.midpage.ai/document/people-v-duryea-5507404?utm_source=webapp" opinion_id="5507404">30 N. Y. Supp. 877.
But we do not agree with the learned counsel for appellant in his contention to the effect that the undisputed evidence shows that carnal knowledge of the prosecutrix was obtained solely on the conditional promise that appellant would marry her in the event that she be- • came pregnant. It was a question for the jury, under the evidence, as to whether the sexual intercourse was obtained with no other promise than that appellant would marry the prosecutrix in the event that she became pregnant. True, the evidence shows conclusively that he promised to marry her if she became pregnant, but the jury were warranted in finding from her testimony, taken as a whole1, that the intercourse was had on an express promise of marriage and that the condition as to pregnancy was only intended to hasten the marriage. The prosecutrix testified that appellant had tried often to have sexual intercourse with her before their engagement and she had persistently refused, but after they were engaged he said if she became pregnant “he would marry her right away. ’ ’ They had designated some time in the fall for the marriage to take place.
In Cherry v. State, 38 S.E. 341" court="Ga." date_filed="1901-03-01" href="https://app.midpage.ai/document/cherry-v-state-5570706?utm_source=webapp" opinion_id="5570706">38 S. E. 341, the facts were similar, and the court held: “If a single woman allowed a married man to have sexual intercourse with her solely because of a promise by Mm to marry her in the event she became pregnant it was purely a meretricious transaction and not a case of seduction. But if an engagement to marry at a designated time in the future already existed between a marriageable man and woman, and she, on the faith thereof, and because of the fact that he had won her affection and confidence, and under the influence of persuasions and entreaties, accompanied by a promise to immediately consummate the marriage in the event of pregnancy, to submit to Ms lustful embraces, it was a case of seduction.”
It follows that the law announced by the court in instruction No. 3 was correct. The court did not err in refusing prayer No. 16, for the reason that it ignored the testimony tending to show that the sexual intercourse was obtained by an absolute promise on the part of appellant to marry the prosecutrix, but to be consummated “right away” in the event of pregnancy.
2. The court did not err in refusing that part of instruction No. 10 included in the parentheses. The part given wias complete without this. The part refused was but cautionary, and, in effect, argumentative.
There was no error in refusing appellant’s prayer No. 15. This w.as fully covered by instruction No. 11
The court did not err in permitting the letters to be read in evidence. These were sufficiently identified by the prosecutrix. Her testimony as to the identification was sufficiently corroborated by.the testimony of Delcie Burton.
There was no prejudicial error to appellant in permitting the. affidavits of the Taylors to be read in evidence. These affidavits were admitted by them, and the witnesses stated -that the facts stated therein were true. It was for the jury to say whether or not these facts were in conflict with the testimony given by these witnesses at the trial. The court told the jury that the affidavits could only be considered for the purpose of impeachment. They were competent for that purpose. Moreover, if the facts set forth in the affidavits were true, as the witnesses stated, it was harmless error to allow the jury to consider them. It was but a repetition of the same facts, and the testimony wtas competent and relevant.
There was no reversible error in allowing the sheriff to testify that he went to Bristow, Oklahoma, to get the defendant. The sheriff, was merely stating what he did through his deputy, stating it as a fact which he knew.
Finding no reversible error in the record, the judgment is affirmed.
Instruction No. 11. — You are instructed by the court that, in this case, the burden of proof rests upon the prosecution to make out and prove to the satisfaction of the jury, beyond a reasonable doubt, every material allegation in the indictment, and unless that has been done, you should find the defendant not guilty.