Wood v. State

| Ga. | Jan 15, 1873

Lead Opinion

McCay, Judge.

By the laws of this State, seduction is treated as a most heinous crime, and is punished with the very longest period of penal servitude known to the Code, except that of perpetual imprisonment. If the crime be in fact committed, this is a most just and salutary law, since it is hardly possible to conceive of a more base and dastardly deed. It is a grievous *wrong, done by a selfish, heartless villain, against a helpless and innocent victim, and it is most justly denounced by all good people as a fiendish offense against God and against society. The man who is guilty of it has betrayed and ruined a woman; has, by artful and fraudulent practices, seduced her from the paths of virtue, inspired her with lustful desires, and, finally, led her, perhaps, at last, a willing victim to crime. It is this deliberate, fraudulent, artful leading into crime of a trusting, pure-minded girl from chaste thoughts and pure desires, that gives such moral turpitude to the offense. Of the actual fornication both are guilty — guilty even under human laws — and both are subject to the same penalty. It is the seduction of the woman by the man that forms the gist of, gives the name to, and makes the heinousness of this offense. Neither the language nor the spirit of the statute makes the crime to consist solely of procuring, by fraudulent means or otherwise, a woman hitherto undebauched to allow of illegal sexual intercourse with her. The means used must be fraudulent and deceitful, and must “seduce a virtuous unmarried female — induce her to submit to the lustful embraces of the seducer, and allow him to have sexual intercourse with her.” All the language, and all the sentences and clauses have a meaning. The woman must be seduced — led away from virtue — induced to permit lustful embraces, and, finally, to commit the crime of fornication. And this is the invariable history of cases of seduction. The seducer first gets the confidence of his victim by a promise of marriage, or by some other fraudulent means; he next seduces her away from modest and pure and chaste thoughts; then follows lustful toyings and-lascivious embraces, until the poor girl, her confidence betrayed, her chaste thoughts turned into lustful desires, alloivs and consents to crime. The woman who, in consideration of a promise of marriage, consents to fornication with the promisor, is not seduced. She sells herself just as completely as if she had given the same consent in consideration of a promise of money. The whole purport of the statute, its fundamental, essential idea, is, that the seducer has, by his arts, first defiled the heart, and made *lust and desire to dwell where he found chastity and purity, and having thus disarmed his victim, procured an easy surrender. He must “seduce a virtuous unmarried female, and induce her to submit to his lustful embraces and allow him to have sexual intercourse with her.”

An indictment would not be a good one under this law, if it simply charged that the defendant had, by persuasion and promise of marriage, procured a virtuous unmarried woman to allow him to have illegal sexual intercourse with her. The words and the sense of the statute require it to be stated that the woman has been “seduced and induced to submit to the lustful embraces of the seducer, and allow him to have carnal connection with her.” Each of these phrases is something more than mere tautology and useless verbiage, and is to be treated as having a meaning, and they are all significant of the legislative will.

I have been thus particular in expressing my understanding of what it is that makes the crime of seduction, because it almost necessarily follows that if this be the meaning of the statute, the defendant is entitled to a new trial.

The indictment upon which the trial was had contains three counts. 1st. One charging the seduction by persuasion and promises of marriage. 2d. One charging the seduction by false and fraudulent means. 3d. One charging it by persuasion and promises of marriage, and by false and fraudulent means. The second and third counts, whilst they charge the seduction by false and fraudulent means both set forth, as a part of the false and fraudulent means, the persuasion and promise of marriage, relied on and set forth in the first count. The promise of marriage set forth is to this effect: That .he (the defendant) would marry the said Emma I. Chivers, so soon as his wife should die, he at the same time, saying that his wife was in bad health and would die in less than two years. To the whole indictment, as well as to each count of it, the defendant pleaded a special plea'1 in bar, as well as not guilty. This special plea was to the effect that at the time the said crime was charged to have been committed, as well as for *several years previous thereto, the defendant was a married man, living daily with his wife and children, and that this was well known to Miss Chivers, who was a sensible and well educated woman.

To this plea there was a demurrer, and the demurrer was sustained by the Court and the plea stricken.

So far as this was a plea in bar to the whole indictment, we think the Court was right. The issue presented by the plea assumed the law to be that a married man, known by the woman’ seduced to be such, cannot, under any circumstances, whether by promise of marriage or otherwise, be guilty of the crime of seduction.

We are not prepared to admit this to be the law. The words of this section of the Code are: “Any person, who, by persuasion and promise of marriage, or by other false and fraudulent means, shall seduce a virtuous unmarried female,” etc. There is also a provision that the defendant may condone the offense by marrying the woman seduced, or by a bona ñde, continuing offer to marry.

•It is contended that as the female seduced must be unmarried, and as there is a provision for condonation by marriage or by an offer of marriage, it was intended that a married man could not be guilty of the offense. But we can see various reasons why this is not a fair construction of the law. A married woman is better skilled against the arts of the seducer than the in-, genuous, simple-minded girl, and she cannot so surely be treated as the victim of a villain. Besides, the words of the law are not any unmarried man, but “any person,” and we think it is straining that portion of the section which permits the condonation beyond its meaning to give it the effect contended for. It is rather an aggravation of the wrong that even the reparation permitted is impossible. The act has two clauses. “If any person, by persuasion and promise of marriage, or by other false and fraudulent means, shall seduce,” etc.

That a married man may be guilty of seducing, by false and fraudulent means, a woman who knows he is married, is, *we think, incontestible. He may win her confidence in many ways. He may be her guardian, her near kinsman. He may, as is charged in this case, be her teacher and spiritual adviser; she may honestly and chastely honor, confide in and trust him. She may look to him as the fountain of truth and purity, so that his acts, his words and his opinions shall be to her as those of a God. Under such a state of circumstances, the girl' is as much a victim as though her confidence were the product of that tender and confiding relation existing between plighted lovers, bound by pledges to be consummated at the altar of marriage. Indeed, as all experience has proven, the influence which a priest may acquire over a devotee is, perhaps, of all others, the most complete, and whilst she may by it be led to a purer life and to a holier condition, it is possible that she may be led by it blindfold into sins of the deepest die. We do not think, therefore, that this plea was a good plea in bar to the whole indictment. But whilst we so rule, we are, at the same time, of opinion that the plea was a good plea in bar to the first count of the indictment — the count charging the seduction on the persuasion and promise of marriage alone. According to our understanding of this statute, it requires that the woman should be betrayed by some sort of false and fraudulent means. The statute says by persuasion and promise of marriage, or other false and fraudulent means. In this is implied that the promise must also be a fraud, one calculated to deceive, one that may win the confidence and allay the suspicions of ah artless, unsuspecting maiden. Can a promise of marriage made by a man having already a wife, with whom he is at the time living, and this well known to the woman receiving the pledge, have such an effect? Can a woman of ordinary sense, who has allowed such a promise to win her confidence, claim to have been seduced by arts and persuasions into the sin of fornication ? Can she be said to be a victim if she has trusted to the vows of a married man that he would marry her, knozving as she does that he cannot and will not marry her? We think not. The woman who listens to such a promise is either a fool or she is a bad woman already. The Confidence of no good woman could be acquired by any such a promise. It could not be made the means of seduction. It is upon its very face a warning to beware. It is a promise so improper in itself, so contrary to all notions of delicacy, true virtue and good morals, that any girl of even ordinary chastity must instead of confiding in, be shocked by it. No reasonable human being could confide in such a promise or be betrayed by it into confidence in the man who made it. The girl who listens to such a promise is not betrayed, and if under such an excuse as that she toys and is finally a criminal, she is not seduced, but has run, of her own lusts, into sin.

By the way in which this indictment is drawn, whilst this promise of marriage is made a leading ingredient in each count, yet as only the first count is based on persuasion and promise of marriage alone, the plea though a good plea in bar to that does not meet all the false ánd fraudulent means charged in the other two counts. We think, therefore, that even if the plea were fully sustained by proof on the trial, there was still matter set forth, which if true, would authorize a judgment.

It is complained that the Judge erred in charging the jury that if the defendant seduced Miss Chivers by any of the means charged, he was guilty. As the promise of marriage is set forth in each count, and is alleged to be one of the fraudulent means by which the seduction was effected, it follows from what I have said that this charge was error. To make a fraud, there must be confidence and a betrayal of it. A pretence, that is upon its face a sham, that can deceive nobody, that no modest woman would listen to for a moment, cannot beget confidence, and cannot be the means of betrayal.

Again, it is charged as error that the Court told the jury that if the girl had never before had carnal sexual intercourse with a man, she was a virtuous woman in the sense of the statute, and that the law presumed her to be such until it was otherwise proven. I am disposed to agree with the Judge as to the presumption of law. It is true the law presumes the prisoner innocent until he is proven guilty; but it does not follow that, in making out this proof, the State can use no *presumptions. The law will presume, for instance, that the prisoner is a sane man; it will presume malice from certain acts; it will presume that the sun rose and set, as it has always done; it will presume that witnesses tell the truth, unless something appears to the contrary. Indeed, as is well settled ope may be found guilty of even murder on proof of facts from which ■his guilt is presumed. The natural, normal condition of an unmarried female is virtuous. If she be less than this, it is a fault, and it ought not to be presumed in any investigation. But I do not agree with his Honor in his charge as to what constitutes a virtuous woman in the sense of this section of the Code. The whole of the section is to be taken together, and the word virtuous is to have such a meaning as does not make other parts of the section meaningless. Under the definition the Judge gave to the jury of this word, it means simply a woman who has never before been guilty of fornication or adultery. She may be a bad woman at heart; she may be filled with all uncleanness; she may be burning with lust, and yet, if, through lack of opportunity, she be yet not an actual violator of the law, she is a virtuous woman in the sense of this law, and one may be guilty of the fiendish crime of seducing her, inducing her to submit to his lustful embraces, and to allow of criminal intercourse.

I do not think so. It needs no fraud or vile arts to make an actual criminal of such a woman. , She cannot be seduced from virtuous, chaste thoughts to lustful desires and lacivious passions —she is there already; and the man who, by promise and persuasion, gets her to break the law, has only violated the last clause of this statute. The crime he commits is neither within the letter nor the spirit of this law. The woman is not a victim.

It is said no other distinct line can be drawn than' that drawn by the Judge. And that is true. But where is the necessity of any fixed line at all? The persuasions, the arts and frauds of ■the defendant in committing the crime are not, and cannot be so reduced to exactness. Why should the character of the woman be determined only by a rigid rule ? She is not *on trial. If it were a crime not to be virtuous, there would be propriety in fixing the terms of the crime, to use words that would show precisely how the guilt should be proven. But here the crime is the seduction of virtue, and I can see no propriety in any Other line than that which satisfies the mind of the jury. It is said, too, that facts which under one set of circumstances show want of virtue — that is, of a chaste mind — might not do so in other circumstances. But this is true, even if the standard be as contended for. In this State the acts and practices described by Mr. Irving as common even between virtuous minded people among the Knickerbockers, or by Hogg and Scott, among the Scotch, would justify a jury in finding actual guilt before the law.

In my judgment the question of what is a virtuous woman ought to be left in each case to the jury, since so far as it is evidenced by circumstances, it must depend upon education and on the state of society in which the girl has been reared. To require the defendant, in order to defend himself from a criminal charge, to start with a presumption of the virtue of a girl, and prove her want of virtue in this sense by actual direct proof, is absurd. The woman herself cannot be compelled to answer, no man can be made to swear, since a witness cannot be required to confess a crime. Such things are invariably done in secret and the proof would be practically impossible. Nor is the reply to the position I have taken that this rule takes away the protection of the law .from a girl who, playfully or in the mere spirit of fun or flirtation, and from habits of life or the customs of society, does acts which squeamish people deem improper. This utterly misconceives the position I have taken. I insist upon it that a woman is not* a “virtuous woman” whose heart is lascivious, whose mind is corrupted and defiled by lustful desires and unchaste wishes, and that this may be proven by other facts than ■proof that will satisfy the mind of an act punishable by law. What that evidence may be or may not be, I would leave to the facts of each case. Do they satisfy the jury that the girl is impure, lustful, lascivious, that her heart has gone *away from virtue, that however her body may yet be not actually defiled, yet that all true chastity has ceased within her, and that it needs no arts or seductions, but only opportunity, for her to be guilty of the act of crime ? The definition given by the Judge makes a virtuous woman to be one of a certain physical condition.

Virtue is a thing of the heart and mind. A woman who has been guilty of fornication has done an act showing that she is not of a virtuous heart, or, at least, that she was not at the time of the act. The evidence, it is true, is very conclusive, but it does not at all follow that she is a virtuous woman because she has not broken the law, no more than it follows that a man is honest because he has not violated the law against stealing.

To be guilty of the crime of seduction is one thing, and to induce a woman to commit fornication is another. The crime of seduction involves purity of heart and a chaste mind in the woman seduced. She must be led away from virtue. The definition of the Judge would exclude a woman who, years before, had been guilty of fornication, but who had repented and was now perfectly virtuous; perhaps the more so that she once had sinned and repented in sackcloth and ashe.s. And this definition of a seducible woman is, as I believe, contrary to the general sense of the word, as used both in England and America.

In the United States, seduction is made a crime, in several of the States, to-wit: in Pennsylvania, Ohio, New York, Min-1 nesota, Iowa, Oregon, and in other States. In all of these States the crime consists in seducing a “hitherto chaste female,” or “of previous chaste character,” or “of good repute for chastity,” and in none of them, so far as I can find, has it ever been held that actual criminal sexual intercourse is the only test of unchastity. It is hardly to be supposed that it was the intention of our Legislature to lower the legal standard to be applied to the victim of the seducer. We all speak the English language. The poetry and the literature of our mother tongue, which fix the meaning of words, have painted the character *of a seducer in terrible colors, and it is a fair presumption, especially in construing a criminal law against the prisoner, that this is the character, the betrayer of female innocence, that was intended to be punished. This is the character punished in other States; this is the natural, long understood meaning of the words, and this, in my judgment, is the only sense of the word which will make the different clauses of this statute all have a meaning, and rescue it from (what appears to have been its understanding in this trial,) the imputation of being an act to punish a man who buys a woman to consent to gratify his lust by a promise to marry her, a consideration which may or may not be better than a money consideration, according to the character of the man who pays the price. I think, too, that this Court, in the case of Mann vs. The State, 34 Georgia, 1, virtually decided this question. In that case, Mann had been convicted of violating this very law. This Court granted him a new trial, because he had, after the trial, discovered he could prove by a witness that before the seduction he had seen the woman, after night, come out of her father’s house with a man with whom she was on familiar terms, go some fifty yards from the house and lay down, and that, from what he had known of the girl, it was his opinion that she was of easy virtue. Surely this would not prove the girl to be guilty of fornication, and the Court, in granting a new trial, could only have done so because the proof would show the woman not to be a modest, pure minded woman. The proof made in this case by Collier is such that, if true, this girl was not a good girl before Wood met her. The charge of the Court, in effect, withdrew this evidence from the jury as proof of a want of chastity, because it did not show actual crime.

In this, I think, there was error. If Collier told the truth this girl was not seduced. She was ripe for crime already, and only needed the chance to fall into it in fact. I do not intend by this to say that the jury were bound to believe Collier, but I think the Court erred in his charge by declaring to the jury, in effect, that the defendant might be guilty *though Collier spoke the truth. No girl, in my judgment, who is so far given up to unchaste thoughts and lustful desires as Collier testifies to, can, in any fair sense of those words, be called a virtuous female. It is a perversion of terms that shocks all sense of propriety in the use of- language. As the case went to the jury, this evidence of Collier, Kirkpatrick and others, was before them only to contradict Miss Chivers when she swore that no man except Wood had been guilty of such freedom with her person. It was only ther,e as to her credit. In our judgment it was entitled, if true, to far more weight than this. It went to show that Wood was not guilty, that the whole story — of an innocent, pure-minded girl, wrapped up in holy reverence for her minister, and led by him, through her confidence in his sanctity, to believe a lie and go into sin, thinking it right — is all a sham. The girl who thus plays with a viper, who thus stands upon the brink of the river of vice and indicates her readiness to plunge into its polluted waters, is not the material of which saintly devotees are made. She has drank of the fountain of carnal desire. The eyes 'of such a woman are opened; her ideas of morality and holiness are not at the behest of a saintly hypocrite; she is too old, too much of earth and of the flesh, to be borne off to those serene heights where her saintly heart may be beguiled into thinking wrong, right, and lasciviousness, purity. One can conceive of simplicity and innocence thus wrapped up in a supposed apostle, but if Collier’s story be true, this girl was not capable of losing herself in any such fanaticism.

We think there was error also in the refusal to charge, as requested by defendant’s counsel, that “one reason for disbelieving a female witness is the fact that the witness discloses in her testimony acts done by her and habits of life pursued by her which exhibit moral turpitude.”..

This is the precise language of this Court, in the case of McDaniel vs. Walker, 29 Georgia, 180, and it is law if the facts of this case make it pertinent. One female witness here testified, that for eighteen months she had been in the practice of frequent illegal sexual commerce with the pastor of the *church to which she belonged; that she was in the frequent habit of going from the prayer meeting to their place of guilt; that she would of her own motion follow him to his home, wait until his family prayers were concluded, and then steal from her hiding place into his study, where, almost in sight of his wife and children, she would join with him in the violation of all the laws of God aüd man, and even of decency, and then go her way alone to her mother’s house, she, too, all the while, a member of his church and communing with him and her fellow members. Such guilt, duplicity and hypocrisy is very great, and it was proper matter for the jury to call to mind in fixing the credit to be given to her statements.

Tt seems absurd to say that the prisoner is not to have the benefit of any doubt of the truthfulness of such a witness, because he was the author of and joined in it.

That is what is to be tried, and such a position assumes his guilt. The law presumes he is innocent until proven guilty, and this position that against him the woman is to be believed, because he is guilty, takes for granted the whole issue on trial.

Nor can it be said that this charge was improper as asked, because it points out too clearly the witness and amounts to a presumption of the fact. The Judge can only charge upon points involved in the evidence, and if the statement of the law is so pertinent to the facts before the jury as to make it fit with startling accuracy, that is no reason why the law should not be given.

It would be a very liberal construction indeed to say that this request was given under the general remarks of the Judge as to the credibility of witnesses. It is only by rather a strained inference that such a view can be sustained. All that can fairly be said is, that the charge as given is not inconsistent with this request. But our statute means more than this. It says that a new trial may be granted if the Judge refuse to give a pertinent legal written request in the language requested. Revised Code, section 3664.

It is ordinarily proper to give the charge in the language requested ; surely that is contemplated by the statute. True, *it sometimes happens that this is verbose, wanting in precision, and we would not make it necessarily error to refuse the exact language. But clearly, the party has a right to have his written request, if it be legal, pertinent and material, given distinctly and in substance. It ought not to be left to the mere inference of the jury, unless that inference be very plain and necessary.

We think there was error in refusing to draw the distinction between seduction and fornication and adultery, because, in our opinion, the jury might, under the indictment, and under the evidence, have found the defendant guilty of adultery and fornication. It is a settled rule that-under a charge of a higher offense of the same nature, if the higher necessarily includes the lower, the jury may find the defendant guilty of the lower. As in murder, the jury may convict of manslaughter, assault and battery, or even of assault. Seduction is a felony. It necessarily includes the other. One cannot be guilty of seduction unless he be also, as part of the same act, guilty of adultery or fornication. On the principle that on an indictment for the felony, the jury may find defendant guilty of the mere misdemeanor, it would seem to follow that under an indictment for seduction the prisoner may, if the proof justify it, be found guilty of' adultery or fornication, as the facts show which of the offenses it is. In New York this very question has been so decided, and the general rule, where the larger offense includes the lesser, -is well settled by the decisions of our own Court.

Judgment reversed.

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Concurrence Opinion

Trippe, Judge,

concurring.

The plea in this case makes the issue whether a married man, whose marriage is known to the female alleged to be seduced, can commit the crime of seduction by persuasion and promises of marriage. The words of the law are: “If any person shall, by persuasion and promises of marriage, or by other false and fraudulent means, seduce a virtuous unmarried female, and induce her to yield to his lustful embraces, and *allow him to have carnal knowledge of her, such person, on conviction, shall be punished,” etc.

The first count in the indictment charges the seduction to have been accomplished by persuasion and promises of marriage. The second count charges “other false and fraudulent means.” The third count charges both persuasion and promises of marriage, and other false and fraudulent means. The plea was filed to all the counts, and agreed by the State to apply to each and all. The’State demurred to the plea, the demurrer was sustained, and the plea disallowed as to either or any of the counts. Thus the Court below held that a married man, wh»se marriage- was known to the alleged victim, could commit the crime of seduction by persuasion and promise of marriage. That judgment is brought here for review.

What was the object of the statute? It was not to make adultery or fornication an offense and punishable. That had been done before. It was not to make fornication, when committed by persons between whom there existed an engagement to marry, more penal than it already was, simply because of that engagement. The statutes of some of the States do this, but in each such statute, or in the decisions construing them, it is provided or held that the man must be unmarried, or not known to the woman to be married. The great object of those statutes, and of ours, and of all such law givers, must have been to prevent the sacred promise of marriage — the promise to become one— the promise of taking the vow of love and fidelity and protection for life — from being made a means of destroying the character, the peace and happiness of one who accepts and confides in that promise. It was to protect the honor and purity of woman from an attack by a seducer, armed with all the power and influence that such a promise must give.

If a woman be in danger from a seducer, the power and chances of that seducer are greatly increased when she surrenders her heart, and the strong bond of promised marriage exists between them. Just there this wise and salutary law — salutary if not perverted — steps in and says to the lustful outlaw, *“If you make the promise to enter into that relation which the law of God and man sanctions, approves and invites, and public policy demands — an instrument to debauch virtue and ruin her who has trusted to it — the brand of the felon shall be upon you.” I repeat, such a law is wise, prudent and salutary. It punishes with severity a most odious crime, and protects virtue where -its defenses are overreached by the false pretences or fraudulent artifices of the spy and the traitor. Rut to say that a promise of marriage, no matter by whom made, whether the man be married or not, whether the promise be impossible or not, shall or can be the means of seducing a “virtuous unmarried female,” and shall be punishable, in case of such a seduction, with the same ignominious penalty, is to confound all gradations of punishment, and to vindicate the assumed wrongs of one who leaps to her ruin, as strongly as the wrongs of one who has been cheated, blinded and defrauded to her ruin by falsehood and fraud. No rule of the civil Code grades its penalties on such a basis.

A false and fraudulent promise of marriage, trusted in by the woman, has, doubtless, often been, and may be again, the means of seducing a “virtuous unmarried female;” and though, by her fall, she may draw the finger of scorn upon her, yet the law becomes her avenger and punishes her wrong-doer, because, by his falsehood, she is defrauded to her ruin. But for her, or any one, or the law, to ascribe her wrongs or ruin to a promise which she knezv was both false and impossible of performance; to say she was seduced by listening to a promise as degrading to her by listening to it as to the one who made it; by a promise of a man of what she knew he did not have, is as utterly at variance with the true wisdom of all law and sound morals as it would be for her to claim the sympathy and vindicative protection of the law for yielding herself by a promise of a palace from a pauper, or of a crown from a beggar. As well might she say a bauble or a penny was her price, as that a known barren, worthless, promise won her.

Surely the law does not set up her virtue as of such great worth, that it must be vindicated by such high penalties. But *it may be said that if the law so declares, it matter.*' not what may be thought of its wisdom or the consistency of its logic, it must be administered as it is written. This is true, but it is none the less the duty of a Court to construe and define the meaning of the law when a question for construction arises. The words of the law are: “Shall by persuasion and promises of marriage, or other false and fraudulent means seduce a virtuous unmarried female,” etc. No one can .deny that the “other means,” other than promise of marriage, must be “false and fraudulent.” Those are the very words of the law. “False” means that which is not true, coupled with a lying intent “Fraudulent” is something that will deceive, cheat, mislead, inducing a belief in what is not true and action on such belief. Can it be fairly claimed that all the other means must be false ana fraudulent, believed in by the victim, and she deceived by them, but it matters not whether the promise of marriage was false or fraudulent or believed in, or whether she was deceived by it or not? This would make mere words — words known to be nothing but an empty sound — vox et proeterea nihil, constitute an essential in a most infamous crime. It would only be equaled by that construction of the old English statute making it treason to imagine the death of the King, where it was held, that the owner of an inn called “The Crown,” on urging his son to do his duty, because he would be heir to the Crown, was guilty of treason in imagining the death of the King, for no one could inherit from the King until he was dead. The whole spirit of our law, the reason and the context seem to require the construction, that the promise of marriage must be made under cirsumstances that would not only make it false, but the victim of that promise must be deceived by it. This she could not be if she knew the promise could not be performed.

Again: It is said that the promise might be made by a man who was married and his marriage not known to the woman. What I have said meets this point and implies that by such a promise the crime of seduction could be committed under the law.

*It is further said that the promise might be conditionally made, to-wit: on the event of a divorce, or the expected death of the wife, and a virtuous female misled or deceived by such a promise. The indictment does charge this latter condition, that is, that the death of the wife was expected, ©r it was believed or stated by the defendant to Miss Olivers' that his wife would not live longer than two years, and he would then marry her. I will not dismiss this as was done by a Judge in his reply to a similár point, by the single remark “that such a promise would be void as against public policy, I have no doubt whatever.”

Doubtless such a promise would be void. But a higher ground' may be taken in reply. Such a promise and such negotiations are not only void as against public policy, but the public policy that would allow no woman damages for a breach of a marriage promise so made, still less would vindicate her if she gave up her virtue by means of such a promise, and in such vindication impose a longer term of imprisonment upon the alleged wrong doer than for any other crime save one that is punishable by death or imprisonment for life. The man who would thus act might deserve such a fate, but I do not think that any law or lawgiver would give as a reason for the punishment that he had seduced a virtuous unmarried female. The moral crime against the dying wife might call for any penalty, but hardly any law would punish the act as a wrong against her, who would by her own showing exhibit herself as unworthy of any defender. Least of all, could such a woman thus bartering her virtue, claim to be a “virtuous female” seduced by promise of marriage, and I do not think that such a promise or such a character comes within the scope of the provisions of the law. The man who thus acts, who comes within either class that I have been considering, may be vile and a criminal, he is vile and a criminal, and would be punished on conviction, but not for what he is not and cannot be in such cases, the seducer of a virtuous unmarried female by persuasion and promise of marriage.

But few laws of a similar kind to ours have been brought *under notice in the argument of this case. One statute, that of Wisconsin, excludes all idea, by its very terms, that a married man can seduce by or under a promise of marriage, or that a promise of marriage from a married man can have any agency in seduction. The statute is, “any unmarried man who, under promise of marriage, or any married man who shall seduce,’’etc. The law-makers there did not seem to think such a thing possible as seduction by a married man under a promise of marriage. In New York the statute says nothing of a married man, but provides a punishment for seduction “under promise of marriage.” Under that act it was held in two cases that a married man, known to the woman to be married, cannot be guilty of seduction “under promise of marriage.” The Court in pronouncing judgment say: “To call such an engagement a promise of marriage would be a flagrant perversion of all legal sense and learning.” 1 Parker’s Criminal Reports, 333.

I do not think the Court erred in charging that “the presumption of law is that the female alleged to have been seduced was virtuous, and that presumption remains until removed by proof. She must have personal chastity. If she, at the time of the alleged seduction, had never had unlawful sexual intercourse with man, if no man had then carnally known her, she was a virtuous female within the meaning of the law. If man had then carnally known her, had had sexual intercourse with her, she is not a virtuous female within the meaning of the law.” The proof of lascivious indulgences and wanton dalliances, with other evidence short of direct proof of the overt act, may authorize a jury to infer actual guilt, the illicit act. In the eye of the law a woman is virtuous unless she is guilty of sexual intercourse. She may do wild and wanton things, but unless she be legally guilty, she is legally virtuous. If she does not violate the law, she does not forfeit the protection of the law. Any other standard in law would seem to set up too loose a rule for the guidance of juries, and what would be held by one jury as showing a want of virtue, would be considered by another as ^innocent. If a jury believe from the evidence that the illicit act has been committed, the want of virtue is then shown. This may be shown by circumstances as well as by direct proof.

I concur with my brother McCay as to .the right of the defendant to have had the request in relation to the credibility of a witness given in charge; and the more especially was it his right where his conviction may be had on the uncorroborated evidence of the woman alleged to have been seduced. The statutes on this point, in several of the States and of the United States, require the woman’s testimony to be corroborated. I have found no statute that does not require this, except our own. Where a defendant is thus exposed, he is entitled specially to the right to have all legal and proper principles applicable to the case to be given in charge to the jury. I also concur on the other points in his opinion on which the judgment of this Court is given, and generally in his reasoning thereon, except as to the point wherein I have above expressed a different opinion, and I concur in the judgment reversing the judgment of the Court below, and granting a new trial.

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Dissenting Opinion

Warner, Chief Justice,

dissenting.

The defendant was indicted for the seduction of Emma E Chivers, an unmarried female, under the provisions of the 4305th section of the Code, which declares that, “if any person shall, by persuasion and promises of marriage, or other false and fraudulent means, seduce a virtuous unmarried female, and induce her to yield to his lustful embraces, and allow him to have carnal knowledge of her, such person, on conviction, shall be punished by imprisonment and labor in the penitentiary for a term not less than two nor longer than twenty years. The prosecution may be stopped at any time by the marriage of the parties, or a bona fide offer to marry on the part of the seducer.”

When the defendant was arraigned, he filed a plea in bar of the indictment, alleging therein that he was a married man at the time the offense is alleged to have been committed, and had been so for more than eleven years; had a lawful wife, *with whom he was then cohabiting, and three children, which was well known to the said Emma I. Chivers, and could not have been a party to a contract of marriage, etc.

The counsel for the State demurred to the plea, which was sustained by the Court,' and the defendant excepted. The question made by the defendant’s plea is, whether a married man, known to be so by the female alleged to have been seduced, can be indicted and convicted under the before recited section of the Code, This section of the Code, it will be perceiv*d, is not restricted, by its terms, to unmarried men, but declares that if any person shall, bypersuasion and promises of-marriage, or other false and fraudulent means, seduce a virtuous unmarried female, etc. The fact that the seducer cannot repair the injury done by marriage, because he is already married, does not lessen the offense, but is an aggravation of it. It might as well be said that if an unmarried man should seduce a virtuous unmarried female, by persuasion and promise of marriage, and should afterwards marry another woman, that he could not be convicted and punished because he could not then repair the injury by marriage of the victim of his lust. This section of the Code should receive a reasonable construction, that the injury done to the seduced female may be repaired by the seducer by marriage, when it can ¿awfully be done. But it is said the seduced female in this case fcnew at the time that the defendant could not marry her, and, therefore, she was not deceived by him, that she acted in her own wrong. The reply is, that the provisions of the statute are aimed at the seducer, and not at his victim; besides, it is alleged in the indictment that the defendant’s wife was in bad health and could not live long, and tlv.t he promised to marry her after his wife’s death.

The mother of the human race was tempted and fell, ana the object and theory of our law is to punish the tempter, the seducer, whether he be a married or an unmarried man. If the defendant truthfully represented to Miss Chivers that his wife was in bad health and could not live long, and promised to marry her after his. wife’s death, and thereby persuaded and *induced her to yield to his lustful embraces, and allowed him to have carnal knowledge of her, then he would be guilty of seduction under the provisions of the Code. If the defendant falsely and fraudulently represented to her that his wife was in bad health and could not live long, when in fact she was not in bad health, and conditionally promised to marry her as before stated, and thereby persuaded and induced her to yield to his lustful embraces, etc., then he would be guilty of seduction, notwithstanding he was a married man.

Persuasion and promises of marriage are not the only means contemplated by the statute by which a virtuous unmarried female may be seduced. The statute did not intend to enumerate all the means to which the artful seducer might resort to accomplish his purpose, but if he promises marriage, or by “other false and fraudulent means,” seduces a virtuous unmarried female, he would be guilty of seduction, although he might not have promised marriage. The other means employed to accomplish his purpose, as contemplated by the statute, must be such as the law will recognize to be false and fraudulent, according to the legal .sense of those words, as applicable to the facts of the case. As if the defendant although a'married man, being the pastor of the church of which the young unmarried female was a member and her school teacher, as is disclosed by the evidence in this record, having her entire confidence, told her that he loved her, and asked her to return his love, and if she would allow him to be intimate with her he would not harm her, would not hurt her feelings for the world, that he had thought of all this before and knew it was not .wrong; had made it a subject of prayer, had prayed to be directed right, that his conscience did not smite him for the course he was taking, that he believed if it had been wrong that Providence would have interposed some way to prevent it, that he had that much confidence in God that he believed that some obstacle would have been interposed to their intimacy, that his wife did not love him and had refused to have anything to do with him, that he had no one in whom he could place confidence, , and begged her to trust him wholly, and not to be so ^reserved, that she must know that if he did anything wrong it would hurt him as much as her, that she might know that he would not injure himself, etc.

In view of the relative position which this unmarried femala occupied'towards the defendant, the means employed by him to seduce her, come within the definition of “other false and fraudulent means,” as contemplated by the statute, and the fact that he was a married man at the time, and that his victim knew it, does not protect him against the crime of seduction, as charged in the indictment, and, in my judgment, there was no error in sustaining the demurrer to the defendant’s plea. The object and intention of the statute was to protect the virtue of unmarried females against seduction, by married as well as unmarried men, either by persuasion and promises of marriage, absolute or conditional, or by other false and fraudulent means, and to punish the offender therefor in the Courts, so as to prevent the injured parties or their friends from seeking redress by the punishment of the offender with their own hands. The statute is a beneficial one, and I am not disposed, as a judicial magistrate, to restrict its operation so as to defeat its object and manifest intention. The motion in arrest of judgment was properly overruled.

The offense as charged in each count in the indictment is sufficiently technical and correct, and states it in the terms and language of the Code, and so plainly, that the nature of the offense charged might have been easily understood by the jury. It is only necessary to allege in the indictment such facts as make out the offense under the provisions of the Code. All the evidence expected to be. introduced on the trial need not be set forth in the indictment, and, therefore, there was no error in the Court in admitting evidence pertinent to the issue on trial, because it was not set forth therein.

It is insisted that the Court erred in charging the jury “that the presumption of law is that she, Emma I. Olivers, the female .alleged to have been seduced, was virtuous, and that presumption remains until removed by proof. She must have personal chastity. If she, at the time of the alleged seduction, *had never had unlawful sexual intercourse with man, if no man had then carnal knowledge of her, she was a virtuous female within the meaning of the law. If man had then carnal knowledge of her, had had sexual intercourse with her, she was not a virtuous female within the meaning of the law.”

This charge of the Court was, in my judgment^ a correct interpretation of what the statute means by a virtuous unmarried female. If the unmarried females in this State are not, in the eye of the law, presumed to be virtuous until the contrary is shown, the condition of our unmarried females is quite different from what I have always supposed it to be, and cannot, by my judgment, sanction the contrary presumption that they are not virtuous, but must affirmatively prove 'that they are so. The presumption of the law is that all of our unmarried females are virtuous, and that the reverse thereof is the exception. The proposition contended for, as applicable to our unmarried females in this State, is simply monstrous. The public morals of our people have not yet become so corrupted that the law will presume that our unmarried females are not virtuous, and if such a state of things existed, it would be a very cogent reason why the statute against seduction should be enforced for the protection of society generally.

But it is said the Court erred in its charge, in not submitting the question to the jury, under the evidence of Collier and others, whether Miss Chivers was a virtuous unmarried female, as contemplated by the statute, at the time of her alleged seduction by the defendant. The Court did charge the jury that if she had never had unlawful sexual intercourse with man, if no man had then had carnal knowledge of her, she was a virtuous female, within the meaning of the law, but if man had then carnal knowledge of her, had had unlawful sexual intercourse with her, she was not a virtuous female, within the meaning of the law. If that was not the proper standard by which a virtuous female should be tested, in the sense of the statute, what shall be the proper standard? If *she had her pristine virtue at the time the defendant seduced her, and he deprived her of it, was she not a virtuous female, in the sense that word is used in the statute? Will the wayward, imprudent acts of a school girl, the allowing improper liberties to be taken with her person in play, or otherwise, rebut the presumption of the law that she is a virtuous female, in the sense of the statute, and that she has had carnal knowledge of a man? In the estimation of some people, if an unmarried female wears her dress too short or too low, and thereby exposes her person, she might not be considered a virtuous female.

What shall be the test of a virtuous unmarried female, in the sense and meaning of the statute, unless we adopt that as stated by the Court in its charge to the jury? In my judgment, so long as an unmarried female retains her personal chastity, she is a virtuous unmarried female, within the true intent and meaning of the statute, and that he who persuades or induces her to surrender to him that personal chastity, in the manner as prescribed therein, is a seducer; in other words, if no man has ever before deprived the unmarried female of her personal chastity, the first man that unlawfully does so is the seducer of a virtuous unmarried female, as contemplated by the statute.

In this case, the female alleged to have been seduced had not only the presumption of the law in favor of her being virtuous, but she stated positively, in her evidence, that no man had ever had carnal knowledge of her but the defendant. Was there anything in the evidence of the defendant which, in the judgment of the law, would rebut the presumption of her being a virtuous unmarried female, in the sense of the statute, and her sworn statement that she was so at the time of the alleged seduction?

Whether the jury believed the statements of Collier, I do not know, that was a question for them, but what were his statements in relation to Miss Chivers’ personal chastity? In 18^7, he went to school with her to the defendant; she called him to her one day in the school room, and told him to sit by her, *he did so, and she took his hand, put it inside her bosotn next to her skin, he felt her legs, hugged and kissed her. At another time, she told him that she would let him sleep with, her that night, provided her mother was absent, agreed to gc, but did not, was sick. At another time, one day about two o’clock, she sort of pulled up her clothes and asked him if he did not .want to feel her legs; this was near the school-house where the boys were playing ball; she also told him one day in the school-house, that if he would call on her some night like a decent young man, and after he went out, wait on the railroad about half an hour or so, she would come out and meet him on the railroad; that arrangement was never consummated, was sick, and went home to Alabama, where he lived then and now. Take all this evidence of Collier to be true, and what of it ? Does it prove that any man had carnal knowledge of her person, or that she was not a virtuous unmarried female in the sense of the statute, at the time of the alleged seduction by the defendant? The law presumes her to have been so, and she swore positively that she was so. So far as the evidence of Collier is concerned, admitting it all to be true, the citadel of her virtue remained intact; it was not captured by him, or any other man, up to the time of the alleged seduction by the defendant, so far as the evidence shows. It is somewhat remarkable, however, that Collier, being about nineteen or twenty years of age, who was so much tempted by this young lady, according to his account of it, did not imprové the opportunities so gratuitously and repeatedly offered to him.

After all, the question on this branch of the case for the jury to decide, was whether Miss Chivers was a virtuous unmarried female at the time of the alleged seduction by the defendant, within the meaning of the statute; had she ever before that time had carnal knowledge of a man? Was she in possession of her personal chastity at that time, and did the defendant take it from her? The presumption of the law was in her favor, besides her positive evidence of the fact, and admitting all the evidence offered to prove the contrary *thereof to have been true, still, it falls very far short of being sufficient, under the law, to rebut that legal presumption, and the proven fact that she was, at the time of the seduction, a virtuous unmarried female, in the sense and meaning of the statute.

There is no evidence offered by the defendant which approximates to the establishment of the fact that she had carnal knowledge of any man prior to the alleged seduction. The evidence of Collier, if true, proves improper conduct on her part, but there is nothing in that evidence which would authorize the jury, under the law, to find that she had carnal knowledge of him, or any other man. I will not say that evidence of a man and woman being found in bed together, or other acts of a similar character, which, under the law, would raise a violent presumption of unlawful sexual intercourse between the parties, would not be sufficient evidence of carnal knowledge of each other to authorize the jury to so find; but there are no facts of that kind proved in this case, or any other facts which, under the law, would raise a violent presumption that she had had carnal knowledge of any man other than the defendant, and, for that reason, there was no error in the charge of the Court of which the defendant can complain. The Court ought not to have charged the jury upon an assumed state of facts not proved by the evidence, but the Court did charge the jury that she must have had personal chastity, that if man had carnally known her, had had unlawful sexual intercourse with her, she was not a virtuous female within the meaning of the law, and left the jury to decide that question, under the evidence, in relation to that point in the case, including Collier’s evidence, as well as that of the other witnesses.

Where is the evidence in this record that raises a violent presumption under the law, that Miss Olivers ever had at any time carnal knowledge of any man other than .the defendant, which would have authorized the Court to have charged the jury in relation to it? When a defendant is indicted on the criminal side of the Court for seducing a virtuous unmarried *female, it is not a good legal defense for him to black ball her character by proving loose declarations, imprudent or immodest conduct on the part of his victim; but he must go further, and prove that she had lost her personal chastity prior to his alleged seduction of her, or he must prove such facts as, under the law, would raise a violent presumption that she had done so, such facts as, under the law, would authorize a jury' to find that she had had unlawful sexual intercourse with a man. To hold otherwise will make the statute which was intended to protect the personal chastity of unmarried females not worth the paper on which it is written.

It was not the object of the statute to protect the defendant’s personal chastity, as the argument assumes, but the object of it was to protect the personal chastity of the unmarried female against his attempts to take it from her, no matter what may now be his pretexts or. excuses for depriving her of it. If she was such a notorious character as he would now have us to believe, why did he not have her excluded from the church of which he was the pastor. Is it a legal defense for him now to say that he was seduced to deprive her of her personal chastity? The argument amounts to just that and nothing more.

It was not a question of damages that was involved on the tiial of the accusation, or whether the defendant was guilty of the offense of adultery and fornication, but the question was did the defendant deprive the unmarried female of her personal chastity, as alleged in the indictment. If she had lost it before, then he did not deprive her of it, for he could not take from her that which she did not have. The. law, however, presumes that Miss Chivers was a virtuous unmarried female in the sense of the statute, at the time of the alleged seduction; she swore that she was, and taking all the evidence offered by the defendant to show the contrary thereof to be true, it is not sufficient, under the law, to have authorized the jury to find that she was not a virtuous unmarried límale as contemplated by the statute, and who could not have been seduced and deprived of her personal chastity by the defendant, as ^'alleged in the indictment. In my judgment, there was no error in the refusal of the Court to charge as requested or in the charge as given, of which the defendant had a right to complain, in view of the evidence contained in the record. If the jury believed the testimony of Miss Chivers and her mother, (and that was a question exclusively for their consideration) then the verdict was unquestionably right, and according to the repeated rulings of this Court, heretofore made, that verdict should not be disturbed. I am, therefore, of the opinion that the judgment of the Court below should be affirmed.