Bowers v. State , 29 Ohio St. 542 ( 1876 )

Welch, C. J.

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 theprosecutrix, 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 locus pcenitentice. 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 evi'deuce of specific acts of intercourse by the prosecutrix with persons other than the defendant. Evidence of the defendant’s previous connection with her stands on a different basis. Such evidence was properly admitted, not, however, for the purpose of impeaching her character, but because it tends to show that the criminal act charged was not committed under a promise of marriage. We are supported in this view of the case by decisions in several of the states, under similar or analogous statutes. We refer to 11 Ind. 466; 13 Id. 46; 20 Id. 44; 21 Id. 15; 25 Id. 90; 29 Id. 267; 26 N. Y. 203.

The remaining question is, whether the court erred in refusing to receive evidence of the alleged admission of the prosecutrix, made in consultation with her attorney. We think not. She was' a mere witness and not a party, and as such witness was compelled to testify. The case, therefore, comes clearly within the rule in regard to privileged communications, unless the presence of her mother at the time of her interview excludes it. It is well established that the privilege extends as well to communications to or through an agent, as to those made directly to the attorney by the client in person, and we think it is only a dictate of decency and propriety to regard the mother in such a case as being present and acting in the character of confidential agent of her daughter. The daughter’s youth and supposed modesty would render the presence and participation of her mother appropriate and necessary.

We see no error in the case, and the motion must be overruled.

Motion overruled.