Carney v. State , 79 Ala. 14 ( 1885 )

STONE, O. J.

The defendant was indicted and convicted under section 4188 of the Code of 1876, as amended by act approved February 25th, 1881. — Sess. Acts, 1880-81, p. 48. The statute declares, that “Any man, who, by means of temptation, deceptions, arts, flattery, or a promise of marriage, seduces any unmarried female in this State, shall be deemed guilty of a felony,” etc. The chief act by which the alleged seduction was accomplished in this case, was, as it is claimed the proof tends to show, a promise of marriage. The statute provides, that “ no conviction shall be had under this section on the uncorroborated testimony of the female upon whom the seduction is charged ” (to have been committed). In Wilson v. The State, 73 Ala. 527, 533, we said: “ The essential elements of the offense, as it is described by the statute, are — first, the hvoman must be unmarried ; second, she must be induced to a surrender of her chastity by a promise of marriage, or by the arts or deception of the man.” These are two of the elements of the offense, which, to authorize conviction, must be shown with that measure of proof requisite in criminal cases. And the promise of marriage, arts, or deceptions, as the case may be, must sustain the relation to the accomplished purpose — the consummated offense — as cause to effect, or the case is not brought within the statute. We do not mean to say that, to sustain conviction, the alleged promise of marriage must be found by the jury to have been the sole moving inducement to the surrender of chastity charged to have been made; but that no conviction should be had, unless the jury are convinced beyond a reasonable doubt that there was a fall from virtue, and that that fall was brought about by defendant’s “temptation, deceptions, arts, flattery, or promise of marriage,” either one or more, or all of these co-operating to produce the result. This is what we mean when we say, the means or inducement employed must sustain the relation to the act accomplished, of cause to effect.—Cunningham v. The State, 73 Ala. 51.

Human emotions and human passions are not, in themselves, physical entities, susceptible of proof, as such. Like the at. mosphere, the wind, and some acknowledged forces in nature, they are seen only in the effects they produce. Pleasure, pain, joy, sorrow, peace, restlessness, happiness, misery, friendship, enmity, anger, are of this class. So, tenderness, sympathy, rudeness, harshness, contempt, disgust, the outcrop of emotional status, can not, in their constitution, be made so far physical facts, or entities, as to become the subject- of intelligible word description. They are proved by what is called opinion evidence. Not the mere unreasoning opinion, or arbitrary conclusion of the witness, but his opinion based on experience and observation of the conduct, conversation, and facial expression of others, in similar emotional conditions. Facial expression and vocal intonation are so legible, as that brutes comprehend them ; and yet human language lias no terms by which they can be dissected, and explained in detail. The reasoning in such cases is a posteriori, and the major proposition is but the sum or resultant of every one’s experience and observation. The following authorities will elucidate the rule we have been attempting to explain. Possibly some of them carry the principle too far.—S. & N. R. R. Co. v. McLendon, 63 Ala. 266; Bennett v. Fail, 26 Ala. 605; Wilkinson v. Mosely, 30 Ala. 562; Fountain v. Brown, 38 Ala. 72; Barker v. Coleman, 35 Ala. 221; Stone v. Watson, 37 Ala. 279; 1 Greenl. Ev. §§ 102, 440; Lawson’s Expert & Opinion Ev. 466; 2 Phil. Ev. (4th Ed.), 182; Ins. Co. v. Mosely, 8 Wall. 397; Trelawney v. Colman, 2 Stark. Rep. 191; McKee v. Nelson, 4 Cow. 355; Tobin v. Shaw, 45 Me. 331. See, also, the numerous authorities on the brief of counsel.

The rule, however, must not be carried too far. It is born of necessity, and it must end with the necessity which calls it into being. It allows this concrete mode of proving emotional statics, but it does not allow proof of what such emotional status will generally or probably lead to. That is an inferential conclusion, which must be left to the determination of the trying body. In a trial for murder, it is competent to prove the defendant was at enmity with the deceased, or the contrary. It would not be competent to-prcve that the relations of the parties were such that they would or would not be likely to cause one to slay the other. Nor would it be permissible to prove in the concrete, or as opinion evidence, that the accused acted like a person who desired to s!ay his adversary. That would be a question for the jury to determine on all the evidence. We might offer other illustrations.—Richards v. Richards, 37 Penn. St. 225; Johnson v. Ballew, 2 Por. 29.

The witness Judge was allowed to testify, that “defendant acted towards Katie Nicholas as a suitor.” To this defendant excepted. A suitor, in the sense here employed, is “ one who solicits a woman in marriage.” We think this was not a subject for expert, or opinion evidence. It is not e.very lover who solicits marriage. Nor do we think that human experience and observation can furnish a rule for determining when social relations between persons of the opposite sex indicate matrimonial intentions. Human dispositions, and habits of social intercourse, are too variable for that. The City Court erred in admitting the evidence pointed out above.

Nor do we think this witness should have been allowed to give his opinion that the accused “ acted towards Katie Nicholas as a lover.” Love between the sexes has different constituents from those found in mere friendship. It is itself very variable in its constitution. It may be refined, having elevated aims, or it may be gross, in which baser desires predominate. Still, to discriminate between these, it would seem, would be too difficult and uncertain in its exercise to allow it to become a factor in judicial administration. In 1 Whar. Ev. § 510, it is said : “An inference necessarily involving certain facts, may be stated without the facts.” He adds : “When the facts are not necessarily involved in the inference (e. g., when thednference may be sustained upon either of several distinct phases of fact, neither of which it necessarily involves), then the facts must be stated. In other words, when the opinion is the mere shorthand rendering of the facts, then the opinion can be given,' subject to cross-examination as to the facts on which it is based.” We do not think a witness should be allowed to testify, from a mere observance of conduct, demeanor, or social intercourse, that the one acted towards the other as a lover. See l Whar. Ev. § 509.

The suggestion made by the presiding judge to the witness Katie Nicholas, while under cross-examination, can scarcely be reviewed here with safety. It is alike the duty of the court to protect a witness unduly dealt by, and to abstain from interference when the examination is properly conducted. Much must be left to the discretion of the judge presiding. We are unable to perceive that any injury was done in this case by the remark of the presiding judge.

The rulings on the offer made to discredit Mrs. Kemper will not arise again in the form here presented, and we need not consider them.

The second charge asked by defendant’s counsel was rightly refused. It is too complicated to be given in charge to a jury, and asserts one proposition which is not sound.

The other rulings are free from error.

Reversed and remanded.