State v. Bryan , 34 Kan. 63 ( 1885 )

The opinion of the court was delivered by

Hop-ton, C. J.:

The appellant was convicted for a violation of §36, chapter 31, Compiled Laws of 1879. This section reads as follows:

“ If any male person shall obtain illicit connection, under promise of marriage, with any female of good repute, under twenty-one years of age, he shall be adjudged guilty of a misdemeanor, and shall be punished by fine not exceeding three thousand dollars, or by imprisonment not exceeding two years, or both such fine and imprisonment: Provided, That the testimony of the woman alone shall not be sufficient evidence of a promise of marriage.”

The information charges the offense in the language of the statute. The appellant moved to quash the same, for the reason that the information did not sufficiently charge that the prosecutrix, Hattie M. Kinsley, was of good repute at the time of the marriage contract; that the information did not charge that the prosecutrix was, at the time of the marriage contract, a single woman, or that the appellant was a single man; and that the information did not allege that the marriage contract was the moving cause or consideration for the illicit connection.

The information did charge that the prosecutrix was of good repute at the time of the lharriage contract as well as at the time of the illicit connection, as the promise of marriage is recited as having been made at the time the illicit connection was obtained. The information reads that—

“On or about November 3, 1884, in said county of Smith and state of Kansas, one H. B. Bryan, a male person, did then and there unlawfully and feloniously obtain illicit connection with one Hattie M. Kinsley, she, the said Hattie M. Kinsley, then and there being a female person of good repute, of the age of only seventeen years, and that the said H. B. Bryan did then and there obtain such illicit connection with said Hattie M. Kinsley aforesaid, at the time and place aforesaid, under a promise of marriage, then and there made by him, the said H. B. Bryan, to her, the said Hattie M. Kinsley.”

lm marSa^ef non;sufficient The allegation that Bryan, being a male person, obtained illicit connection with the female, seduced under a promise of marriage, inferentially charged that the femalé was a single person. It would conform to the better practice if the information contained an express averment that the prosecutrix was, at the time of the marriage contract and illicit connection, a single person; but as the language used necessarily implies that she was single at the times stated, and as the appellant could not have been misled or prejudiced by anything in the information, we think it was not fatal for omitting the direct averment that the prosecutrix was a single person. The promise of marriage in such a case need not be technically valid, and it would be no defense that the defendant was married and could not make such a promise. Therefore it was not necessary to allege that the appellant was a single man. (2 "Wharton’s Grim. Law, 8th ed., § 1758.) As the information charges that the illicit connection with Hattie M. Kinsley was obtained by the appellant under a promise of marriage, the information does show that the promise of marriage was the consideration for the connection, and that in submitting to the appellant’s request, Hattie M. Kinsley relied on the promise.

On the cross-examination of the prosecutrix she was asked by defendant’s counsel a number of questions, which were objected to, and the objections were sustained. Of this the appellant complains. The questions were as follows:

“Q,. You may state if at Mr. Evey’s, at a party on Friday night before your birthday last February, one year ago, 1883, Al. "Williams asked you to accommodate him, and you said ‘We have no chance.’

“Q. You'may state if at Mr. Evey’s party, on Friday night before your birthday on Thursday, last February, one year ago, 1883, Al. Williams asked you if Bryan, (meaning this defendant,) ever asked you for it, and you said ‘No, he hain’t got sense enough.’

“Q,. You may state if at a party at Jim Wicks’s one year ago last March, you were not in a bed-room, in the dark, alone with Jim Wicks, between ten and twelve o’clock at night.

“ Q. You may state if at that same party at Evey’s, whether or not Jim Wicks and John Evans did not ask you to accommodate them, and you merely laughed.

“Q,. State if you were not sick in the fall of 1880..

“Q. Is it not the fact that you were pregnant in the fall of 1880?

“Q,. Is it not a fact that between the 12th and 27th days of September, 1880, you came to Dr. Ayer, in Smith Center, for medicine, claiming to the doctor that you had a cold, when in fact you were pregnant?

“ Q,. Is it not the fact that on the 27th day of September, 1880, you came to Dr.'Ayer, in Smith Center, and at that time you and your mother went with Dr. Ayer to Dr. Ayer’s house, and the doctor made a private examination of you, and told you you were pregnant, three or four months gone?

“Q,. How long did you keep company with him (Irwin Stevenson)?

“Q,. Did you, before the defendant was going to see you, have intercourse with Irwin Stevenson?”

2. Incompetent reputation ana age of female. These questions did not relate to the subject of the examination-in-chief, and their purpose, therefore, evidently was to establish familiar and improper conduct on the part of the witness with other persons than the appellant; or to obtain a denial of such conduct of the witness with other persons. The statute determines the rule as to the character of the evidence required to convict, and that rule is, “good repute of the prosecutrix.” The evidence, therefore, in this regard, must . be confined to the general reputation or character ° A of the pi'osecutrix for chastity; and the character prosecU£rjx for chastity, in this class of cases, cannot be impeached by evidence of particular acts of unchastity. Proof of specific acts of criminal intercourse by the prosecutrix with other persons will not do. In Bowers v. State, 29 Ohio St. 542, in a conviction upon a statute very similar to ours, the following language is used:

“The instruction asked by the defendant and refused by the court, and the rejection of testimony tending to show specific acts of lewdness on the part of the prosecutrix, raise the same question, namely, whether the protection of the statute extends to all females under the age of eighteen, whose reputation for chastity is good, or only to such as have deservedly acquired that reputation by a pure life. It seems to us that the plain words of the statute leave no room for doubt on this question. The statute provides: ‘That any person over the age of eighteen years, who, under promise of marriage, shall have illicit carnal intercourse with any female of good repute for chastity, under the age of eighteen years, shall be deemed guilty of seduction.’ Language could hardly be plainer. It is the reputation and the age of the female, and not her previous conduct, that bring her within the protection of the statute. The law wisely and justly accords to the erring female a focus poemitentice. If she has repented of her past error, and by her upright walk acquired an unimpeachable reputation for chastity, the law protects her against the man who overcomes her good resolves by a promise of marriage. It is the purity and integrity of her mind, and not merely those of her person, that the law designs to guard against the attacks of the seducer; and it looks alone to her general repute as evidence of that purity and integrity. We think, therefore, that the court was right in excluding evidence of specific acts of intercourse by the prosecutrix with persons other than the defendant.”

In many of the states, the statute, instead of reading, “ of good' repute,” provides that the female shall be “ of previous chaste character.” Under such a statute, the character of the prosecutrix may be impeached by proof of specific acts of lewdness. (Kenyon v. People, 26 N. Y. 203; Carpenter v. The People, 8 Barb. 603; Polk v. The State, 40 Ark. 482; People v. Brewer, 27 Mich. 134; People v. Clark, 33 id. 112.) These decisions are not applicable to our statute, and therefore no comment upon them is necessary from us.

Again, as proof of want of chastity does not tend to prove want of truthfulness, the attempted cross-examination was not competent to affect the credit of the prosecutrix. The testimony of Dr. Ayer, Alice Evans and Al. Williams of specific acts of unehastity on the part of the prosecutrix with other persons than the appellant, was inadmissible for the reasons already stated.

The exceptions taken to some of the testimony offered on the part of the state, tending to show that the prosecutrix was a female of good repute for chastity, are not tenable. While the witnesses objected to, testified that—

“They did not know the general reputation of the prosecutrix for chastity in the neighborhood in which she resided at the time of the trial — that is, the neighborhood about twelve miles north of Smith Center — but they testified further that they had been acquainted with her about five years; that she had resided in the neighborhoods where the witnesses lived; that she was generally acquainted in said neighborhoods ; and that they knew her general reputation for chastity in such neighborhoods.”

s chastity comete witness. These witnesses resided only five miles from the home of the prosecutrix. All this tended to prove the general reputation of the prosecutrix for chastity, and therefore was sufficient to go to the jury for their consideration. In a case of this kind, of course, it must be shown on the part of the state that the prosecutrix was, at the time of the illicit connection, of good repute; but it is unnecessary to confine the repute to one particular locality, if the female seduced has resided in different neighborhoods. Again, it well might be that a person not residing in the immediate neighborhood of the witness sought to be impeached would have as ample and accurate knowledge as to the reputation of such witness, among his or her neighbors, as one who did. (Wallis v. White, 58 Wis. 27; People v. Lyons, 51 Mich. 215; Kelley v. State, 61 Ala. 19; Holliday v. Cohen, 34 Ark. 707; Railway Co. v. Richardson, 66 Ind. 43.)

We have examined the instructions refused and those given, and also the comments of counsel regarding the same. We perceive no material errors in these matters, and the observations made cover substantially all the points presented.

. „ evidence'of good repute. In the language of the instructions, a woman’s reputation for chastity “is what the people of her acquaintance generally say of her in this regard; that is, the general credit for chastity which she bears among her jjgjg^Qrg and acquaintances.” If a woman’s neighbors and acquaintances say nothing of her, or do not question her character for chastity, then her reputation in this regard should be considered good. “The best character is generally that which is the least talked about.” Therefore, the negative evidence of a witness “that he never heard anything against the character of the woman for chastity,” on whose behalf he had been called; that is, “ that he never heard her conduct criticised, condemned, or even talked about,” is admissible" upon the trial, where the reputation of the woman for chastity is in question, and is strong evidence of the woman’s good repute. (1 Wharton’s Law of Evidence, §49; 16 Cox, 34; Gandolfo v. State, 11 Ohio St. 114; Regina v. Rowton, L. & C. Crown Cases, 1861-65, pp. 520 to 544.)

'Upon the record, the judgment of the district court must be affirmed.

All the Justices concurring.