Cluck v. State , 9 Okla. Crim. 580 ( 1913 )

First. The testimony in this case is clear and conclusive as to the guilt of appellant. Lola Ball testified that she had never had sexual intercourse with any other person than appellant. She gives a detailed account of the manner in which her seduction was accomplished by appellant, all of which is corroborated by the circumstances of the case. Appellant did not take the witness stand, and offered no testimony in his behalf which threw any light upon the material questions in the case.

Section 6838, Comp. Laws 1909, Rev. Laws, 5886, is as follows:

"Upon a trial for inveigling, enticing or taking away an unmarried female of previous chaste character, under the age of twenty-five years for the purpose of prostitution, or aiding or assisting therein, or for having, under promise of marriage, seduced and had illicit connection with an unmarried female of previous chaste character, the defendant cannot be convicted upon the testimony of the person injured unless she is corroborated by other evidence tending to connect the defendant with the commission of the offense."

Under this statute the testimony of the prosecutrix must be corroborated as to the promise of marriage and illicit intercourse, but not as to her being unmarried and of previous chaste character. That Lola Ball was a country girl of previous chaste character is proven by her testimony; for she testified that she had never had sexual intercourse with any person except appellant, and this was not called in question by any evidence on behalf of appellant. That appellant had been her accepted beau since she was 15 years of age is also proven. To one witness appellant once referred to her as his freckled-faced wife. In talking to another witness with reference to his engagement to her, he said that he was going to have her if it took him 10 years to get her. To another witness appellant stated that he would not deny that they had been engaged to be married. These statements of appellant corroborate the testimony of Lola Ball as to the promise of marriage. The facts that appellant was constantly with Lola Ball and was her accepted beau, and the birth of her child, corroborate her statements as to her seduction by appellant. This is all the corroboration which is needed, or that the law requires.

In the case of Harvey v. Territory, 11 Okla. 157,65 P. 838, Judge Burford, in considering this question, said:

"It is contended by plaintiff in error that this statute requires corroboration of the prosecutrix on every element of the offense. We cannot agree with this contention. The authorities seem to be in irreconcilable conflict on this question, but such conflict is more apparent than real. Almost every state has a statute requiring some kind of corroboration in this class of cases, yet these statutes very materially vary in their provisions and requirements. It is by reason of this difference in the various statutory provisions that the seeming conflict in the decisions of the courts arise. We must first determine the meaning and purpose of our own statute. The only requirement is that the prosecutrix must be ``corroborated by other evidence tending to connect the defendant with commission of the offense.' Now, there are but two things that he is charged with doing, viz., promising to marry the prosecutrix, and having illicit connection with her. The other two elements of the offense go to the character of the person protected by the law, viz., an unmarried female, and the one of chaste character. With these two elements the defendant is in no way connected; no action of his brings about either condition; but if he has promised to marry her, then he is connected with this element of the crime, and her evidence alone is not sufficient to establish such promise; and if he has had illicit intercourse with her this act also connects him with the offense, and the evidence of the female with whom the intercourse was had is not sufficient to prove such fact. Hence we think the purpose of the statute is to require the prosecutrix to be corroborated on the promise of marriage and the illicit intercourse, and not upon the elements that go alone to her characteristics, viz., that she was unmarried, and that she was of chaste character."

An examination of the case of Harvey v. Territory, supra, in which the conviction of appellant was affirmed, will show that the case at bar is much the more flagrant of the two, and is supported by a much greater weight of evidence.

In the case of State v. Smith, 84 Iowa 522, 51 N.W. 24, the Supreme Court of that state held that in a prosecution for seduction the fact that the parties kept company and acted as lovers usually do, and other like circumstances, are sufficient corroboration of the evidence of the prosecutrix.

The evidence in the case at bar makes out a most inexcusable, long planned, cunningly devised seduction planned by appellant, and there is not one word of testimony in the record which raises the suspicion that he is not guilty as charged.

We desire, in this connection, to repeat what we said in the case of Hast v. Territory, 5 Okla. Cr. 162, 114 P. 261, as to the enormity of the crime of seduction:

"The offense of which the defendant has been convicted is the blackest in the catalogue of crimes. It is a much graver crime than that of rape by force. A rape fiend is generally carried away by the sudden irresistible impulse of the strongest passion to which man is heir. As soon as the crime is committed, he may deeply regret it. It is true that he has committed a fearful outrage upon the body of his victim; but her soul remains pure, and she may still be a loving mother, a trusted wife, and an honored member of society. None of these things can exist in a case of seduction. The seducer acts with the utmost deliberation. He coolly lays siege to the citadel of his victim's heart, and, by all manner of flattery, promises, and protestations of love, he gains her affections and subjects her will to his. This is not the work of a moment, but it extends over days and weeks and maybe months of time. The appellant was over 20 years the senior of this unsuspecting country girl. He was a man of experience and property. She was a mere child. There was no blacker and more deadly treachery in the heart of Judas Iscariot when he betrayed the Savior of mankind with a kiss than there is in the heart of the seducer, when in the sacred name of love he violates the body and crushes the soul of his unfortunate and trusting victim, merely to gratify his base animal passion. She is as powerless in his hands as a sparrow in the talons of a hawk; as a lamb in the bloody jaws of a wolf. He not only outrages her body, but he —

"``Ne'er can give her back again That which he has taken away, The brightest jewel woman wears Throughout her little day. The brightest and the only one Which from the cluster riven Shuts out forever woman's heart. From all its hopes of heaven.'

"No punishment can be too great for the seducer. Under the Mosaic law, the penalty of death was inflicted for this offense. The seducer was taken beyond the gates of the city and stoned to death. If this was the law now, there would not be so much impurity in our country. Which is worse, to kill the body and let the soul live, or to kill the soul and let the body live? One is physical death; the other spiritual assassination. The courts and juries of this state cannot be too vigilant in protecting the innocent girls of our country against the wiles and machinations of such incarnate fiends in human form. The virtue of our girls is the most sacred thing this side of heaven. The man who boasts that he can take $1,000 and beat a prosecution for seduction, as appellant did, had better leave this state if he desires to preserve his liberty. Of course, no one should be convicted upon suspicion; but where a defendant has been found guilty of this infamous and detestible offense, after having had a fair and impartial trial, and the evidence clearly shows his guilt, as it does in this case, it would be a crime against society and treason to virtue to set the verdict aside."

The legal propositions presented in the oral argument and brief of counsel for appellant have all been repeatedly decided adversely to the contentions therein made by this court. It is therefore not necessary to repeat them.

The conviction of appellant is just and merited. We find no material error in the record. The judgment of the lower court is therefore in all things affirmed.

The imprisonment of appellant will begin on the day of his reception in the penitentiary. Mandate will issue without delay.

ARMSTRONG, P.J., and DOYLE, J., concur.