People v. Kane , 14 Abb. Pr. 15 ( 1861 )

By the Court.^*—Brown, J.

to marry, seldom, if ever, rest upon considerations pecuniary in their nature, and a consideration is quite as necessary to support such promise as it is to support any other. Prom the very nature of the marriage contract, the promises are mutual, and the one thus becomes the consideration for the other.

In an action by a female to recover damages for a breach of a promise to marry, it never was deemed indispensable for her to prove an express promise on her part, in order to make out a consideration; but such promise will be inferred from the circumstances which usually attend upon the conduct and demeanor of the parties towards each other. In short, the consideration must be stated in the pleadings, but it need not be expressly proved, but may be inferred and implied.

Upon the trial of this indictment against Joseph Kane, for seduction under a promise of marriage, the court was asked by the counsel for the prisoner to charge the jury, “ that to convict the prisoner, there must have been a legal promise of marriage ; that is, a mutual promise,” which the court declined to do, but charged, “ that the promise need not be mutual;” but the jury could not convict unless they found from the testimony that the complaining witness consented to and was induced to have intercourse by reason of a subsisting promise of marriage, and they must find whether she was seduced under promise of marriage, or otherwise.

To this there was an exception. To convict under this statute the prosecutor must, I think, prove an express promise by the prisoner. And I am inclined to think, that when the testimony shows a seduction accomplished by means of such a promise, it is enough, and without any thing further, will justify a verdict of guilty.

The statute means a promise to marry, and does not demand that it be a promise upheld by a corresponding promise to marry by the person seduced.

Be that as it may, however, it is not material to the decision of this exception.

What the court was asked to charge, by the prisoner’s counsel, was, that there must have been an express promise by the person seduced, in order to support the promise made by the prisoner, and that was what the court declined to do. But the court did not say that the jury might not have inferred the promise on the part of the complainant, from her assent to the intercourse. In a civil action the evidence would have been abundantly sufficient for that purpose.

I think the exception was not well taken.

The prosecution was not bound to prove the previous chaste character of the complainant. This was to be presumed until it was damaged by evidence impeaching it.

The judgment should be affirmed, with the usual direction that the prisoner be committed under the sentence pronounced by the Court of Sessions.

* Present, Emott, P. J,, Brown and Schrugham, JJ.