Fowler v. State , 5 Day 81 ( 1811 )

Jliu vo -;. C

The vu'erd presents three exceptions to the judgment of the County Court, appearing from a bill of exceptions there filed, i’h- that the court admitted Nancy For her, the only person present at the time the acts complain fd of were committed, to testify to the same ; and did refus-■ to admit in evidence, for the purpose of rebutting her- testimony, a complaint to the grand-jurors of the town, for the same transaction, drawn up by an attorney, and signed by her ; and that said court charged the jury, that wanton and lascivious acts of one person only, practised to another peí-son of a different sex, against the will and consent of such person, no other being present, did, or might constitute the offence -within the statute.

If the charge b correct, the first exception /ails of course The correctness of the charge depends on a sound construction of the statute.

Although, from the indelicacy of the subject, and the different shades of criminality attending the offence, the legislature have avoided a definition of lascivious carriage and behaviour ; yet, it is evident from the preamble to the ac'-aftd the plain import of the expressions, that they meant K; include and suppress ail those wanton acts, between persons of different sexes, flowing from the exercise of lustful passions, which are grossly indecent and unchaste ; and which are not otherwise punished as crimes against chastity and public decency.

If this be a correct exposition of the statute, our enquiry is, whether the conduct of the accused, as stated in the infer matron, and proved by the witness, comes fairly within it.

That it is lustful, grossly indecent and unchaste, cannot be disputed. It will also be admitted, I presume, that it did not constitute a known offence punishable at. common law nor by any statute, unless by the one in question. It however contended, that this crime cannot lie committed, unless by the assent ami concurrence of two, a.i least. This alienee may undoubtedly be committed by, or in the presence of, an assemblage of persons of different sexes ■, but there is nothing in the nature of tile crime, requiring the assent or concurrence of those who are present, nor Jo pre vent the commission of it, by one person only, exhibiting his lascivious carriage, to another uneonseuting person, of a different sex. Indeed, the criminality of the offence is en danced by tin. opposition ; for it must be considered as one principal object of the Saw, to protect and strengthen such resistance, by preventing the exhibition of impure motive,, calculated to excite passions, and thereby overpower tin will.

On iiit other point, I would observe, that though the fair unvarnished declarations of witnesses, are to be received to impeach their testimony : yet, the words used by an attorney. in drawing a declaration in a suit at law, or a hill ii: chancery, are not admissible in modern practice, for that purpose; because the draft, so made, is usually drawn in technical language, with averments of legal inferences, apparently different from the plain import of the simple detail of the facts. The writing offered is of this nature. It appears tp have been drawn up technically, by an attorney, as the basis of, a public prosecution ; and it may be with an averment of such facts, as in the opinion of the attorney, were legally inferrable from the story of the witness, and without any view to preserve a memorial of the facts stated. Thus circumstanced, it comes fairly within the rule of declarations, or bills in chancery, which are excluded- I may also add. tliat this paper does not profess to be an accurate detail of all her story ; of course, is not as good evidence as the testimony of an attorney would be, relating what she actually said to him, at the time the complaint was drawn.

I am, therefore, clearly of opinion, there is nothing erroneous on either ground.

Mitchell, C. J., Reeve, Trumbull, Smith and Buain-»rd, Js>, severally concurred in this opinion.

Edmonl'j J.

was of opinion, that the complaint to the grand-jurors, subscribed by the witness, ought to have been admitted, for the purpose of impeaching her testimony : on the other point he concurred.

Ingersocl, J. having been of counsel in this cause, did not judge.

Swift, J.

I am of opinion, that the writing subscribed by the witness, and sent to the grand-jury, ought to have been admitted in evidence, to impeach her testimony.

Formerly, bills in chancery were admitted in evidence, to prove the facts therein stated, probably, on the ground, that being subscribed by the party, they were considered to be his story ; but now, as it is known, they are frequently the suggestion of counsel only, they are not evidence; though answers in chancery, when sworn to, are yet considered as evidence. Declarations and pleadings, have nos. been considered as evidence of the facts they stale.

In this case, it is contended, that the paper offered in evidence, ought to be rejected, on the ground, that it is analogous to a bill in chancery. It appears to me, there is no analogy between the two cases. In the case of a suit in chancery, the plaintiff states Ms claim, and his counsel puts it in apt and legal from; and though the bill be signed by the party, this is mere matter of form, and is not an assertion, that he knows the facts to be true, nor an admission, that they are true ; but merely a statement which he intends to prove by witnesses. It would, therefore, be wrong to consider this as evidence against him ; for, he may fail to prove such statement, or, it may turn out to he wholly a mistake ; and then, he ought not to be bound, or charged by it. Hut, in this case, the person who drew up the paper subscribed by the witness, was a justice of the peace, and mi attorney ; yet, he did not act as counsel to the witness, but appears to have drawn up a statement of facts from her mouth, which was subscribed by her, for (he purpose of laying it before the grand-jury, as the basis of a criminal prosecution ; and to the truth of which facts, she must be supposed to pledge herself to testify. She must, therefore, be considered as de blaring the statement to be true ; and the writing must be considered as standing on the same footing, as if drawn by herself, and as containing her declarations respecting the facts, in the same manner as any other written declarations, and of course, if variant from her testimony, admissible to impeach it.

Suppose she had gone in person to the grand-jury, and told them precisely the same story, on which they had instituted a criminal prosecution, and she bad been called on as a witness ; can there be any question, but that it would have been admissible, to have proved by the grand-jurors, that in stating the facts to them, she told a different story from her testimony 1 And, can there be any difference between the cases, whether she represented the transaction in writing, or verbally ?

It is not true, that the circumstance of a writing being a legal proceeding, is a reason why it may not be given in evidence ; for, an answer in chancery is a legal proceeding, and yet, is evidence against the party making it. The true principle is, that no writing shall be evidence, where it is not a statement of facts, upon the knowledge of the party making it. A bill in chancery is considered as the suggestion of counsel, and therefore, not evidence ; but as the party, in an answer in chancery, swears to facts within his knowledge, this is evidence. In this paper, subscribed by this witness, is a declaration of facts within her knowledge, made to the grand-jury, as a foundation for a criminal prosecution. It is, then, precisely analogous to an answer in chancery, and for the same reason, would be admissible evidence, though considered in the nature of a legal proceeding.

But, it is difficult to see, how information of the commission of an offence, to grand-jurors, can be considered as a legal proceeding. It may as well be said, that a note of baud is a legal proceeding, because an action can be brought upon it.

'1 his, then, is the common case of impeaching a ¿witness, by shewing, that he had given in writing, or verbally, a different account of the transaction from his testimony; and Bierefore, the evidence was admissible.

Judgment affirmed.