Williams v. State

45 So. 146 | Miss. | 1907

Mates, J.,

delivered the opinion 'of the court.

The first question presented by this record is the action of the-trial court in refusing the application for continuance. An application for continuance is largely addressed to the discretion of the trial court, and is subject to review by this court only when it is manifest that there has been an abuse of this discretion. Looking into the history of this case as disclosed by the-record, it is our judgment that the action of the trial court in refusing the continuance was eminently proper. The history of this case shows that this indictment was found at the March term, 1902, and was continued on application of defendant. At the September term of the court following it was again continued-on the application of the defendant At the March term, 1903,. the indictment was demurred to, the demurrer sustained, and the defendant placed under bond to await the further action of the grand jury. At the September term of the court, 1903, the defendant failed to appear in accordance with the condition of the bond, whereupon the bond was forfeited, and a scire facias issued to the bondsmen, with an alias capias for the defendant. At the March term, 1901, the case was continued again; the record being silent as to who applied for the continuance. At the September term, 1901, another judgment nisi was taken on the bond, another alias capias issued for the defendant, and a scire facias to the bondsmen. At the March term, 1905, there was another continuance. At the September term, 1905, the ■case was continued on the application of the defendant. At the March term, 1906, the bond was again forfeited by the failure of the defendant to appear, and a scire facias issued to the bondsmen, and an alias capias for the defendant. The case was finally called for trial at the September term, 1906. Thus it is that, when this case was finally called for trial, for nearly five years, by virtue of continuances and forfeitures, it had wearily dragged its way in the courts and the defendant had escaped trial. The course which this cause had heretofore taken was a matter for the consideration of the court. The delays which had occurred in the trial, and the cause of those delays, all were proper subjects to be considered in determining the good faith of the application, and in considering whether or not the continuance should be granted. A proper • exercise •of the discretion vested in the trial court as to the allowance or refusal of further continuances prompted it to be more rigid in granting this application than it would have been, had this ■application been the first application made.

In the attitude of this case at that time, nothing but the utmost diligence on the part of the defendant would warrant the court in further continuing the cause, and the record does not show this on his part. On the contrary, at the court term prior to the term at which this trial was had, the defendant had permittecl a forfeiture to be taken on his bond and his witnesses to be dispersed without seeing to it that they were resummoned. We do not decide that in every case where a forfeiture of the bond occurs it is necessary for the defendant to resummon his witnesses, nor do we decide that where he has permitted a forfeiture to be taken on his bond for nonappearance it is not necessary for him to resummon the witnesses. Whenever this question is presented, it will have to be determined in the light of the particular facts of the case. We only decide that upon this record, in view of the fact that there had been five continuances and three forfeitures of the appearance bond, it was the duty of the defendant to exert every means known to the.law to be ready to submit himself for trial at the next succeed-. ing term after the forfeiture, and in this case diligence required that he summon each and every witness whom he proposed to use at this term of the court, and that he avail himself of evéry process of the law in order to enable him to be ready for trial, before any further application for continuance by him would be entitled to serious consideration by the court. There must be a time at which persons charged with crime must meet the-indictment. There is much in the record of this case to lead to-the belief that the delays and applications for continuance have been brought about in an effort to evade the trial. It has been the repeatedly announced rule of this court that, in the matter-of applications for continuance made to and refused by it, this court will not reverse unless its action is manifestly wrong. No-absolute rule can be laid down as to what matters will constitute good ground for continuance. In all cases this must be largely left to the discretion of the court, as appears in each particular case where the continuance is applied for. 4 Ency.. PI. & Pr. 828, and note; Strauss v. State, 58 Miss., 867; Hemingway v. State, 68 Miss., 371, 8 South., 317; Parker v. State, 55 Miss., 414; State v. Dettmer, 124 Mo., 426, 27 S. W., 1117.

The only other question in this case which we deem it necessary to notice is that wherein contention is made that where the-guilty party offers to marry the prosecutrix after the seduction has been accomplished by a false and feigned promise of marriage, and this offer is refused by the prosecutrix, the guilty party is no longer subject to prosecution. This is the question which is raised by the instruction. In order to properly consider this question, it will be necessary to quote the statute. This prosc■cution arises under Ann. Code 1892, § 1298 (Code 1906, § 1327), and is as follows: “If any person shall obtain carnal knowledge of any woman, or female child, over the age of eighteen years, of previous chaste character, by virtue of any feigned or pretended marriage or any false or feigned promise of marriage, he shall, upon conviction be imprisoned in the pentitentiary not more than five years; but the testimony of the female seduced, alone, shall not be sufficient to warrant conviction.” When the seduction has been accomplished by any false or feigned promise of marriage, the crime is then complete. When the crime has been committed by virtue of the false or feigned promise, no subsequent offer of marriage can in any way operate to excuse it or defeat prosecution for the crime. It might just as well be argued that if a man committed burglary, and when caught and placed upon trial returned the property stolen, a prosecution for the crime should thereby be barred, or if a thief be caught, and when indicted he return the stolen property, he cannot be further prosecuted. The crime made by .this statute is committed the instant carnal knowledge is obtained of a woman or female child, of the years and character ■described in the statute, by virtue of a false and feigned promise of marriage. He cannot escape the consequences of his guilty .act by anything which he may offer to do afterwards. His guilt is not made to depend upon the fact that, when caught and prosecuted for the crime, he then for the first time makes a bona fide offer of marriage. The character of his act has made him a ■criminal beyond any escape, so far as anything he may do, at the very instant he • accomplished the wrong by a false and feigned promise of marriage. It might well be that,, upon a realization of the great wrong which has been perpetrated upon her by the guilty party, a woman would revolt at the idea of uniting herself to the author of her ruin. It might be that she would treat with indignation and scorn a proposition of marriage from one who has led her away from the paths of virtue by feigned and false promises and deceptions. The mere fact that the offer of marriage is refused ought not to operate as a pardon to the false and treacherous man who has authorized this ruin; but it ought rather to aggravate the crime which he has committed, and this is the view which most of the authorities take.

We are not dealing with the case where there has been an offer -of marriage by the guilty party, which has been accepted by the prosecutrix, followed by an actual marriage of the parties. In such a case the marriage might or might not constitute a bar to the prosecution; but, if it did constitute a bar to the prosecution, it would be for considerations of public policy, and not of leniency toward the guilty seducer. The question of good faith or bad faith of an offer of marriage made subsequent to the seduction cannot operate as a bar to the prosecution when it is not accepted by the prosecutrix. The offer of marriage, made subsequently, may be given in evidence merely for the purpose of showing the good faith or falsity of the alleged promise to marry at the time of or prior to the seduction, and the jury were so instructed. On page 605 of the second edition of Wharton’s Criminal Law, in note 6, it is said: “An offer of marriage, made after seduction, which is refused by the prosecutrix, is not a bar to the proecution.” In the case of State v. Mackey, 82 Iowa, 393, 48 N. W., 918, the same rule is laid down. This same authority, in speaking of the Kentucky statute and of the Texas statute, states that both the Kentucky court in the case of Commonwealth v. Wright, 27 S. W., 815, and the Texas court in Wright v. State, 31 Tex. Cr. R., 354, 20 S. W., 756, 37 Am. St. Rep., 822, have held differently. But an examination of the cases where the courts have held differently will show that they .are construing statutes of their own dealing with this subject, and that the particular decisions which seem to hold contrary to the view announced in this opinion are predicated of the provisions of the statutes of these two states. In section 1116 of McClain’s Criminal Law it is said that “an offer of defendant to marry the prosecutrix that is unaccepted by her is not a bar to the prosecution for the seduction, and is immaterial.” In 25 Am. & Eng. Eñcy. of Law (2d ed.) p. 249, it is said: “The great weight of authority supports the view that the guilty party cannot escape punishment by a mere offer of marriage, unless it is accepted by the injured woman, and that nothing but an actual marriage is a bar to the prosecution.” We cite these authorities, and in the footnotes to each will be found many cases from numerous states holding that an offer of marriage, made subsequent to the seduction, cannot operate as a bar to a prosecution, where that offer is unaccepted by the prosecutrix.

We are not called upon in this case to decide whether or not, even if the prosecutrix had married the defendant, it would have been a bar to further prosecution, because that is not this case. In this case she refused the offer, and did not marry him, and the question which we have to consider here is whether or not, he having accomplished her ruin by means of a false and feigned promise of marriage, any subsequent offer, made by him to marry her at a time after the seduction is an accomplished fact, can operate to excuse him from the crime committed and prevent further prosecution. We have no hesitancy in announcing that no subsequent offer made by him can excuse his crime. If it be argued,, as it is, that this holding would place the man at the mercy or the whim of the woman whom he has wronged, our answer is that the guilty party has no right to complain of such result. The crime is the seducing of a woman by a feigned and false promise of marriage. When he committed the crime' he had no idea of carrying into effect any promise made; but he used this promise to accomplish her ruin, and it does not lie in his mouth to complain, when discovered and confronted with the penitentiary, that the woman whom he has wronged refuses to condone that wrong and keep him out of the penitentiary by marrying him. It was his purpose to deceive her, he did deceive her, and if he had not been arrested, or threatened with arrest, there most probably never would have been any offer of marriage by him after he had accomplished his purpose. Her rejection of his offer of marriage, made subsequent to the. accomplishment of her ruin, is not the thing which creates the crime; but it is his own false act. Her action neither increases, diminishes, nor creates the wrong. He has only himself to blame. It may be observed in this particular case that it is plain from this record that defendant did not make the offer of marriage in good faith, intending to live with the prosécutrix after the marriage, but that it was made for the purpose of trying to avoid prosecution; it being his purpose to abandon the woman as soon as he had married her.

We do not think it necessary to discuss the other questions raised in the assignment of error, as we think none of the criticisms of the instructions constitute in this case reversible error.

Affirmed.