140 Ark. 258 | Ark. | 1919
Appellant was convicted under an indictment charging him with the crime of seduction alleged to have been committed by obtaining carnal knowledge of one Bessie Miller by virtue of a false express promise of marriage, and has prosecuted this appeal to review that judgment.
At the time of the commission of the alleged offense he was sixteen years old and Miss Miller was eighteen.
The court gave a general charge correctly declaring the law applicable to the points in issue except that nothing was said about .the effect of a conditional promise. Upon that issue appellant asked the following instruction :
“3. If you find from the evidence that the defendant had intercourse with the prosecuting witness and that she was induced to consent to such intercourse by reason of a promise on the part of the defendant that he would marry her if ‘anything happened7 as a result of such intercourse you will find the defendant not guilty.”
In 24 B-. C. L., page 765, the law is stated as follows:
“In those jurisdictions where .a promise of marriage is by statute essential to criminal seduction the authorities are practically agreed that intercourse procured through a promise to marry the person seduced in case the intercourse results in pregnancy does not amount 'to criminal seduction.”
The footnote to the text quoted cites the annotated case of State v. Caron, 87 Am. Dec. 401, and Hamilton v. U. S., 51 L. R. A. (N. S.), 809, which collect a number of cases on the subject. See, also, Russell v. State, 15 Ann. Cas. 223.
We have had occasion to consider this question in the following cases: Taylor v. State, 113 Ark. 520; Davie v. Padgett, 117 Ark. 544; Oakes v. State, 135 Ark. 221. The case of Davie v. Padgett, supra, was not a criminal prosecution for seduction but was an action for damages for breach of promise to marry.
In the case of Taylor v. State, 113 Ark. 520, the prosecutrix testified that the reason she let the defendant have intercourse with her was that they were going to marry and he said if anything got the matter with her they would marry right away. An instruction was asked in that case somewhat similar to the one set out above, but we held it was not error to refuse it because “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.” In the opinion, however, we said:
“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.”
Substantially the same question was raised in the case of Oakes v. State, supra, and we disposed of the question there on the authority of the cases of Davie v. Padgett, and Taylor v. State, supra, by saying that the testimony did not present the issue that the intercourse was’based on a conditional promise of marriage.
Other assignments of error are discussed, but as they relate chiefly to matters which may not arise upon a trial anew we do not discuss them here.
For the error indicated the judgment will be reversed and the cause remanded.