People v. Johnson

• Decision Date: 18 January 1887
• Citation: 10 N.E. 690,104 N.Y. 213
• Parties: PEOPLE v. JOHNSON.
• Court: New York Court of Appeals Court of Appeals

104 N.Y. 213

10 N.E. 690

PEOPLE

v.JOHNSON.

Court of Appeals of New York.

January 18, 1887.

Mr. Kearns, for appellant.

Mr. Emerson, for respondent.

DANFORTH, J.

The defendant (appellant here) was by indictment accused of having seduced under promise of marriage, and having sexual intercourse with, one Mary Oliphant, at the town of Wilna, she being an unmarried female of previous chaste character. Upon a plea of not guilty, the issue was brought to trial at a court of sessions in the county of Jefferson, when the complainant, being called as the first witness, testified that her name was in fact Mary Olivert. The court thereupon, on the application of the district attorney, and against the objection and exception of the defendant, made an order which, after reciting that ‘it appearing upon said trial that the name of the party so alleged to have been seduced is Mary Olivert, and not Mary Oliphant,’ directed the indictment, and all the proceedings therein, to be so amended as to conform in that respect to the proof, by inserting the name of Mary Olivert in place of Mary Oliphant, and after evidence tending to support the charge had been given, the defendant's counsel requested the court to advise the jury to discharge the defendant, upon the ground, among others, that there was a variance between the allegations of the indictment and the proof ‘as to the name of the person alleged to have been seduced.’ This was refused, and the court gave the case to the jury as one proper for their consideration; and, in view of the defendant's claim that the evidence permitted an inference that if any promise of marriage was made it was not absolute, but conditional,-‘if the complainant would let him have sexual intercourse with her, that if there was any trouble with her he would marry her,’ the judge charged ‘that even though the defendant may have accomplished the seduction of this female under a promise to marry her on condition she became pregnant with child, that that comes within the purview of the statute, and establishes the crime as well as if the promise and agreement to marry had been absolute and without condition.’ To so much of the instructions as related to the force of a conditional promise, the defendant excepted. These two exceptions present the only questions upon which any doubt can be entertained upon this appeal.

1. The indictment alleges an offense against the statute (Pen. Code, § 284) with certainty and precision. No ingredient is omitted, and the only objection is that the surname of the party injured is not stated with entire accuracy. At common law the person charged could require that the name of his accuser, as well as the nature of his crime, should be set forth with certainty, and a variance would have been fatal, unless overcome by the rule of idem sonans, as it was called, which in such cases was frequently resorted to in courts whose judges were astute to prevent the failure of justice, and whose jurors on such occasions had quick ears for harmony of sounds. In this instance it might be difficult to say that the sound of the woman's name is not affected by the misspelling; but even in England the statute now governs, and the court may cure the defect by directing an amendment. 14 & 15 Vict. c. 100, § 1.

In this state the legislature has in like manner interposed, and an indictment is sufficient if it contains the title of the action, specifying the name of the court to which it is presented, the names of the parties, and a plain and concise statement of the act constituting the crime. Code Crim. Proc. § 275. The parties are defined to be the people of the state as plaintiff, and the party prosecuted as defendant, (Id. §§ 6, 7;) and the Code provides that when the offense involves the commission of a private injury, and is described with sufficient certainty in other respects to...