State v. Holter , 30 S.D. 353 ( 1912 )

CORSON, J.

Upon an information duly filed by the state’s attorney of Charles Mix county the defendant was tried and convicted of the crime of seduction under a promise of marriage, and from the judgment of conviction and order denying a new trial the defendant has appealed to this court.

It is disclosed by the evidence that the prosecutrix was a young lady of 22 years of age, and that the defendant was a young man- residing in the vicinity of the family of the prosecu-trix. It is claimed by the porsecutrix that' on the evening of June 18, 1911, she was seduced by the defendant under a promise of marriage. There was evidence tending to prove that the defendant took the prosecutrix out riding occasionally, visited her at the home of her parents prior to the date of the alleged seduction, and that, after the alleged seduction, defendant continued his attentions, and that there were other acts- of illicit intercourse between the defendant and the prosecutrix in July and August, and that by reason of her seduction she became enceinte.

[1] On the trial the prosecutrix, called as. a witness on the part of the state, testified that she was seduced by. the defendant under promise of marriage on the evening of the 18th of June, 1911, and that the first act of illicit intercourse with the defendant was had at -that time. She was then permitted to testify over the objection of the defendant that she had illicit intercourse wih the defendant at three different times in July and August following. It is contended by the appellant that in the admission of this evidence as to subsequent acts of illicit intercourse the court committed error for which the judgment -should be reversed and a new trial granted. It is contended by the prosecution, however, that this evidence was introduced and admitted for the purpose of corroborating the testimony of the prosecutrix, and was therefore admissible. We are inclined to take the view that the state is right in its contention. While' there seems to be a conflict in the decisions on -this question, we are of the opinion that the weight of authority is in favor of its admission. The appellant relies mainly upon the cases of People v. Clark, 33 Mich. 112, People v. Payne, 131 Mich. 474, 91 N. W. 739, and Pope v. State, 137 Ala. 56, 34 South. 840. The state relies mainly upon the case of State v. Robertson, 121 N. C. 551, 28 S. E. 59, and cases cited therein, and 13 Cyc. 1356. A number of other authorities were cited by the respective counsel, but, as the questions seem to have been raised in cases of rape or incest, we do- not deem it necessary to cite them in this opinion. In State v. Robertson, supra, the learned Supreme Court of North Carolina held in the headnote as follows: “In- a prosecution for seduction, it is competent for the state to -show other acts of sexual intercourse between defendant and prosecutrix since the date of the act alleged.” And in the opinion that learned court says: “The state asked * * * the prosecutrix if, subsequent to- September, 1891, there were other illicit acts committed by them of a carnal character. This was objected to by defendant, but allowed by the court, and the witness answered in the affirmative that there had been other acts 'since the first. This ruling of 'the court is sustained by Whart. Or. Ev. § 35; Sherwood v. Titman, 55 Pa. 77; and by a note in Weaver v. Bachert, 44 Am. Dec. 172, where Sherwood v. Titman is quoted with approval.”

[2] It is contended by the appellant that the court erred in admitting evidence over the objections of the defendant that the prosecutrix was in a family way, for the reason that it did not tend_ to corroborate the alleged seduction, but this contention is clearly untenable, as it does, in our opinion, tend to prove in connection with proof of previous chastity of the prosecutrix that she had been seduced by some one. While it might not tend to prove directly that such illicit intercourse was had under promise of marriage by the defendant, still it did tend to prove one fact necessary to be established, namely, illicit intercourse with some one. State v. Wickliff, 95 Iowa, 386, 64 N. W. 282; State v. Burns (Iowa) 78 N. W. 681; State v. Hughes, 106 Iowa, 125, 76 N. W. 520, 68 Am. St. Rep. 288; Merrell v. State (Tex. Cr. App.) 70 S. W. 979; State v. Meister, 60 Or. 469, 120 Pac. 406; People v. Goodwin, 132 Cal. 368, 64 Pac. 561. In the .analogous case of People v. Goodwin, supra, the court held ,as appears by the headnote, that: “On a prosecution for seduction under promise of marriage, it was not error to allow the prosecutrix to testify that she got in a ‘family way’ by the defendant two months after the alleged seduction, as this evidence tended to show, in- connection with evidence of her previous chastity, tliat she had been seduced prior to that time.” It will be observed from the statement of facts in that case that there was evidence tending to prove thar the prosecutrix had became enceinte some two months after the first alleged act of illicit intercourse, and that similar evidence was given in the case at bar by the prosecutrix and corroborated by the testimony of the physician. It seems to be generally held that proof of pregnancy or the birth of a child is competent evidence as proof of illicit intercourse between the prosec'utrix and some man, and tends to corroborate the prosecutrix in her statement as to illicit intercourse with some one. If, therefore, there was sufficient evidence to satisfy the jury that the accused was the party with whom the prosecutrix had the illicit intercourse, the jury was warranted in finding the defendant guilty, providing, of course, that the illicit intercourse with the defendant was had under promise of marriage.

[3, 4] It is further contended by the appellant that the court erred in permitting the prosecutrix to testify as to the motive which induced her to consent to sexual intercourse. On the trial she was asked the following question: “Would you have permitted him to have had sexual intercourse with you at that time except for his promise of marriage?” To this she answered over the objection of the defendant: “I would not.” The objection made to the question by defendant’s counsel in their brief is that it was calling for a conclusion of the' witness, but it has been called to our attention by the respondent that on the trial the question was objected to “as, being leading, suggestive, incompetent, and irrelevant.” It will -be noticed that it was not objected to on the ground' that “it called for a conclusion of the witness,” and, of course, the grounds of objection not presented to the trial-court cannot be considered by this court. But assuming that the objection was properly made, we are of the opinion that the contention of counsel as to its admissibility is untenable. 35 Cyc. 1351, in its article on Seduction, saj^s: “It has been held that the prosecutrix cannot testify to the motive which induced her to submit to intercourse with defendant, but the better opinion is to the contrary.” As sustaining our position, see State v. Brinkhaus, 34 Minn. 285, 25 N. W. 642; Ferguson v. State, 71 Miss. 805, 15 South. 66, 42 Am. St. Rep. 492; State v. Bennett, 137 Iowa, 427, 110 N. W. 150; People v. Jensen, 66 Mich. 711, 33 N. W. 811; Armstrong v. People, 70 N. Y. 38; State v. Raynor, 145 N. C. 472, 59 S. E. 344.

[5] It is further contended by the appellant that the court erred in permitting the presecution to introduce evidence in rebuttal of defendant’s evidence that property belonged to the prosecution’s case in chief. On the trial the. evidence of the prosecutrix tended to prove the commission of the offense on the evening of the 18th of June, the time alleged in the information, and evidence was introduced on the part of the state tending ‘to prove that the defendant was at the home of the prosecutrix that evening. The defendant as a part of his defense introduced testimony tending to prove that he was not at the home of the prosecutrix on the evening of the 18th of June. The 'state in rebuttal of this evidence on the part of the defense was permitted, over the objection of the defendant, to introduce further testimony tending to prove that the defendant was there at that time. It is contended on the part of the state that the defense interposed by the defendant was an alibi,' an affirmative defense, and that such a defense must be affirmatively proven by the defendant, and that it was competent, therefore, for the state to introduce evidence'rebutting the alibi, and, even if it was not admissible upon this ground, the admission or rejection of such evidence was within the sound judicial discretion' of the trial court, and, unless there was an abuse of such discretion, the ruling of the trial court would not be reversed by this court.

We are of the opinion that the evidence was admissible upon both grounds. It is true that the prosecution in making out its case in corroboration of the statements of the prosecutrix introduced evidence of two witnesses tending to prove that the defendant was at the home of the prosecutrix on the evening of June 18th, and this evidence constituted -sufficient corroboroation of the prosecutrix, unless controverted by the defendant by claiming that he was not at the home of the prosecutrix on the-evening designated. Clearly, therefore, the defendant in making -his defense that he was not at the place that evening introduced a new issue which the -prosecution had a right to rebut by additional evidence. Even if this view were not correct, we cannot say t-hat there was any abuse of the court’s discretion in admitting the evidence under the peculiar circumstances of this case. We are of the opinion, therefore, that the court committed no error in permitting the prosecution to make the -proof objected to. State v. Watson, 102 Iowa, 651, 72 N. W. 283; Kastner v. State, 58 Neb. 767, 79 N. W. 713; People v. Mar Gin Suie, 11 Cal. App. 42, 103 Pac. 951; Lo Toon v. Territory, 16 Hawaii, 351; People v. Tidwell, 4 Utah, 506, 12 Pac. 61; State v. Webb, 18 Utah, 441, 56 Pac. 159; State v. Klein, 19 Wash. 368, 53 Pac. 364; State v. Hunter, 118 Iowa, 686, 92 N. W. 872; State v. Seligman, 127 Iowa, 415, 103 N. W. 357; State v. Robbins, 109 Iowa, 650, 80 N. W. 1061.

[6] It is further contended by the appellant that the court erred in giving- the following part of its charge to the jury: “With reference to this provision of the law in regard to previous chaste character, the court charges that the law presumes a woman to be of chaste character until the contrary is shown, but, if there is a reasonable doubt as I will hereinafter' define it of her chastity under all the evidence, he would be entitled to the benefit of that doubt.” There is -a conflict in the decisions as to the correctness of the court’s charge to the jury, but, in the view we take of the case, it will not be necessary to- express any opinion as to the correctness or incorrectness of the court’s charge in the case at bar, as there was no reversible error committed in the charge of the court, for the reason that the prosecutrix had- testified that she had -had no intercourse with any one previous to the time of her seduction by the defendant on the r8th of June; and, as there was no evidence introduced on the part of the defendant questioning her chastity> prior-to that time, the jury was clearly warranted in finding her to be a chaste female prior to- the time of her alleged seduction upon her evidence, and it is immaterial, therefore, in this case whether the court’s instruction is or is not held to be erroneous. The testimony of the prosecutrix did not require corroboration, and, in the absence of any evidence to the contrary, the jury were authorized to regard her statement as to the fact of her chastity as conclusive. State v. King, 9 S. D. 628, 70 N. W. 1046; State v. Miner, 107 Iowa, 656, 78 N. W. 679; State v. Bollerman, 92 Iowa, 460, 61 N. W. 183. Numerous authorities are cited by the respective counsel in support of their respective contentions, but, in the view we have taken-of the case, it will not be necessary to review these authorities in this opinion.

[7] It is further contended by the appellant .that the court erred in the following portion of its charge to the jury: “That she was an unmarried female of previous chaste character, and that there was an act of sexual intercourse under a promise of marriage, are facts which may be found from her evidence alone, if you believe beyond a reasonable doubt that to which she has testified on these subjects, but you cannot find that he is the guilty part3q unless, as stated, there is evidence other- than that of * * * [the prosecutrix] tending to prove that fact.” It is conceded by the learned counsel for the appellant that the language of this instruction was taken verbatim from 'the opinion of this court in State v. King, supra, but it is contended that that decision of this court is not sustained by the authorities and that the law as announced in that case cannot be sustained, and counsel cites cases holding a different view. Upon an examination of these cases it will be found that the decisions were based upon statutes very different from that of our state. After a careful review of the decisions in the case of State v. King, supra, we are not inclined to modify or change that opinion as in our judgment the same gives the correct construction of our section of the Code requiring corroboration of the prosecuting witness. We are, therefore, of the opinion that there was no error in the instruction of the court referred to, following as' it did the decision of this court in the case above cited.

[8] The appellant also contends that the following portion of the court’s charge to the jury was erroneous: “If you find from the evidence that these young people * * * [prosecutrix and defendant] kept company with each other, and acted as lovers usually do, and other like circumstances, if you find any are disclosed by the evidence, are sufficient to constitute corroborating evidence to connect the defendant with the offense within the meaning of the law.” Upon an examination of the whole’ charge we are of the opinion that the court committed no error in the l^ortion of the charge referred to. The charge of the court was fair and impartial. In our opinion it correctly presented the law of the case to the jury, and the claim made on the part of the appellant that the court invaded the .province of the jury in untenable. It is the court’s duty to instruct the jury upon the law applicable to the facts in the case, and this, apparently, was all the court did in the case at bar.

[9] The defendant requested the court to give the following instruction which the court refused: “If the jury find that the defendant had illicit connection with the- precuting witness, and that she consented to the same either wholly or in part through lust or passion, the defendant should be acquitted, although a promise of marriage was then'made by him to her and was part, though not the sole, inducement that caused her to give such consent.” It is doubtful if there is sufficient evidence in the case to warrant such an instruction, but, assuming that the instruction stated the law correctly, the court committed no error in refusing to give the same, as it in its charge to the jury substantially embodied the requested instruction.

[10] The court charged the jury as follows: “nor could there be any conviction if you should find from the evidence that there had been illicit intercourse between them, but that it was by mutual consent in gratification of passion, and was not in truth under promise of marriage.” ' It will thus be seen that the court stated the law to the jury as favorably to the defendant as the law would warrant, as the prosecutrix testified that she would not have had illicit intercourse with the defendant except for his promise 'of marriage, and the defendant as a witness in his own behalf testified that he never had any intercourse with the prosecutrix at any time or place. If the jury believed the testimony of the prosecutrix, they were fully justified in finding the - defendant guilty as charged in the information.

. It is contended by the appellant that the court erred in sustaining a number of objections made by the prosecution to the introduction of evidence on the part of the defendant, but, after a careful examination of the ruling of the co.urt upon these various questions, we are of the opinion that there is not -sufficient merit-in these assignments of error to require separate consideration of them in this opinion.

The judgment of the circuit court and order denying a new trial are affirmed.