Munkers v. State , 87 Ala. 94 ( 1888 )

CLOPTON, J.

The demurrer to the plea of misnomer, interposed by appellant to the indictment, presented for decision by the court the question, whether Richard Munkers, by which name the defendant is indicted, is idem sonans with Richard Moncus, which the plea avers to be his true name, by which he has always been called and known. Though this is strictly a question of pronunciation, when raised by demurrer, it may be treated as a question of law; but, in such case, the judgment of the court should express the conclusion of law from facts or rules of which judicial notice may be taken. When there is no generally received English pronunciation of the names as one and the same, and the difference in sound is not so slight as to be scarcely perceptible, the doctrine of idem sonans can not be applied without the aid of extrinsic evidence, unless, when sound and power are given to the letters, as required by the principles of pronunciation j the names may have the same enunciation, or sound. There is a material difference in orthography, and a perceptible difference between Moneus and Munkers, when ordinary sound and power are given to the variant letters. They are as different names as some which this court has held not to be idem sonans.—Lynes v. State, 5 Port. 236; Humphrey v. Whitten, 17 Ala. 30; Nutt v. State, 63 Ala. 180; Adams v. State, 67 Ala. 89. If by local usage the names have the same pronunciation, it becomes a question of fact, which must be referred to the jury. The court erred in sustaining the demurrer to the plea. The State should have taken issue, or replied.

The defendant was convicted of seduction, under section-4015 of Code, 1886, which declares: “No indictment or conviction shall be had under this section, on the uncorroborated testimony of the woman upon whom the seduction is charged.” This clause of the statute was fully considered in Cunningham v. State, 73 Ala. 51. It was then construed as not requiring that other witnesses shall testify to every fact testified to by the woman; but that its requirements are met, when the corroboration is of some matter which is an element of the offense, and its effect is to satisfy the jury that the corroborated witness has testified truly. The true rule is stated as follows: “That the corroboration shall be such as to convince the jury, beyond reasonable doubt, that the witness swore truly; but, to produce this conviction, it must be in a matter material to the issue, and must tend to connect the defendant with that material matter, and the matter itself must not be in its nature formal, indifferent, or harmless.” This construction was re-affirmed in Wilson v. State, 73 Ala. 527, at a subsequent term of the court. The corroborating evidence consisted of the defendant’s frequent, visits to the female for whose seduction he was indicted, his escorting her to church, parties, and other social gatherings, and his admissions of an engagement and intention to marry her, made about the time of the alleged seduction. A promise of marriage is one of the alternative elements of the offense denounced by the statute. The corroboration was as to this act, with which the evidence connected defendant. His admissions were properly received in evidence. The phraseology of the charge of the court on this subject may be objectionable, as importing to the jury that the corroborating testimony was sufficient. Evidence may be sufficient to meet the statutory requirement as to corroboration, and yet not sufficient to satisfy the jury beyond a reasonable doubt that the woman swore truly.

The chastity of the woman, at the time of the criminal connection, is an essential ingredient of the offense. The statute provides, “No conviction shall be had, if on the trial it is proved that such woman was, at the time of the alleged offense, unchaste.” The female, upon whom the seduction is charged, testified that, though the defendant had solicited her three or four months previously, she did not yield to his persuasions until December, 1887, during which month she bad sexual intercourse with bim on two occasions, and bad never bad sexual intercourse with Mm or any other man prior to or since that time. This was the time elected by the State, and no evidence tending to show a seduction at any other time was offered. The defendant offered himself as a witness, and testified, that be first had sexual intercourse with her in November, 1886, under circumstances, which, if true, tended to show that it was through her inclination as well as his; and that he continued to do so once or twice a week, until a short time before her miscarriage in July, 1888. He further testified, that he did not promise to marry her. There is an irreconcilable conflict between his testimony and that of the female. It was for the jury to determine whom they would believe. If his testimony be true, as to which we intimate no opinion, the sexual intercourse, in its inception, was not induced by “temptation, deception, arts, flattery or a promise of marriage,” and was continuous in practice. If such be the facts, the woman was unchaste at the time of the alleged seduction, in December, 1887. It was the right of defendant to have given to the jury instructions based on the hypothesis which his evidence tended to establish, thus submitting its credibility to them; especially as a reasonable doubt of the chastity of the woman is fatal to a conviction. — Wilson v. State, supra. Her chastity will be presumed, in the absence of evidence of a want of chastity; but, when there is contrary evidence, though it maybe regarded insufficient, the court should not withdraw its consideration from the jury.

On the case as presented by the record, and in view of the fact that the woman and defendant are the only witnesses as to the act of seduction, the first charge asked by the defendant should have been given. The others are objectionable, in that acquittal is based on the ground that the jury have reason to believe from the evidence that the parties had previous sexual intercourse. Verdicts should be founded on belief, not a mere reason to believe. There may be a reason, yet insufficient as a predicate of belief. In this case, the belief of prior sexual intercourse should be strong enough to create a reasonable doubt of the pre-existing chastity of the woman.

Reversed and remanded.