Russell v. State

• Decision Date: 22 November 1906
• Docket Number: 14,626
• Parties: BENJAMIN F. RUSSELL v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

110 N.W. 380

77 Neb. 519

BENJAMIN F. RUSSELL v. STATE OF NEBRASKA

No. 14,626

Supreme Court of Nebraska

November 22, 1906

ERROR to the district court for Frontier county: ROBERT C. ORR JUDGE. Reversed.

REVERSED.

W. S Morlan and J. L. White, for plaintiff in error.

Norris Brown, Attorney General, W. T. Thompson, L. H. Cheney, C. H Tanner and J. L. McPheeley, contra.

OPINION

SEDGWICK, C. J.

In the district court for Frontier county this defendant was convicted of the crime of seduction, and by these proceedings has brought the judgment of conviction here for review. This crime is defined by section 207 of the criminal code. One of the principal contentions of the defendant is that the conviction is not supported by the evidence. In disposing of that question, the evidence in the case will be referred to so far as may be necessary to that discussion.

1. It appears from the record that, in fixing the term of court in that county for the year in which this trial was had, the judge of the district court ordered that the first term of the district court should be held, commencing on the 5th day of March. And afterwards the judge sent from McCook two orders to the clerk of the district court for Frontier county, one of them canceling the regular term for that year, and the other ordering a special term to transact the general business of the court. The manifest purpose of these two orders was to change the date and hold the term one week earlier. There is, of course, no doubt of the authority of the judge to postpone the regular term of court if good reason appears for so doing. He may, for sufficient reason adjourn the regular term without day. The statute, section 4735, Ann. St., authorizes the calling of a special term of court in the following words: "A special term may be ordered and held by the district judge in any county in his district, for the transaction of any business, if he deem it necessary. In ordering a special term he shall direct whether a grand or petit jury, or both, shall be summoned." This would seem to be sufficient authority for the action of the court in calling a special term, and the defendant cannot complain of such action unless he can make it appear that in some particular the statute has been violated. In the order calling a special term, the judge directed that a petit jury should be summoned. This was done, and the defendant moved to quash the panel. This motion was sustained, and the court then ordered the sheriff "to summon 24 persons, good and lawful men, from the body of Frontier county, having the qualifications of jurors, to appear forthwith and serve as jurors for this present term of court." This practice is justified by the provisions of section 664 of the code, which has been many times so construed by this court. We do not want to be understood as recommending the practice of changing the time of holding the regular term of court after the same has been fixed as the law provides. The law does not appear to contemplate such changes for trivial and insufficient reason. If the method pointed out by the statute for securing jurors is disregarded, no doubt the defendant may object to being tried upon a criminal charge before the jury so obtained. In such case the law will presume prejudice. If, however, the provisions of the statute have been complied with, and no prejudice to the defendant appears, it will be presumed that the court had sufficient reason for changing the time of holding the term. This objection of the defendant, then, was properly overruled.

2. Upon the trial of the case the plaintiff showed that the prosecuting witness had been engaged in teaching school, and then offered in evidence her teacher's certificate, after having shown that it was regularly executed by the county superintendent and delivered to the prosecuting witness. It is now objected that this evidence was incompetent, and we think that there is merit in this objection. In the brief for the state it is said that this certificate was not offered "for the purpose of proving the general reputation of the prosecutrix for chastity. * * * The certificate, though it recites * * * 'to be a person of good moral character,' was offered as proof only, and to corroborate other testimony, that the prosecutrix at the time was engaged in teaching school under the proper authority, it being a paper authorized to be issued under the laws of Nebraska." It is impossible to say from this record what the counsel for the state had in mind when this certificate was offered. No suggestion appears to have been made at the time that it was offered for any special purpose. The fact that the prosecuting witness was engaged in teaching school was already in evidence, and, if true, was not likely to be contradicted as it could, of course, be absolutely substantiated. This fact was not so material to the prosecution as to make it necessary to show what the qualifications of the prosecutrix as a teacher might be, nor that she was duly authorized to teach, and the evidence in question could have had no effect in the interest of the state unless intended to show that the prosecutrix was of good repute for chastity. For that purpose it was clearly incompetent. The evidence of the county superintendent upon that point in this criminal trial was of no more importance than the evidence of other witnesses, and ought in like manner to be subjected to cross-examination.

3. The defendant complains that he was not allowed upon the trial to prove specific acts of lewdness on the part of the prosecutrix for the purpose of establishing her want of chastity. The statute under which this prosecution is brought provides: "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, shall be deemed guilty of seduction, and upon conviction, shall be imprisoned in the penitentiary not more than five years, or be imprisoned in the county jail not exceeding six months, but in such case the evidence of the female must be corroborated to the extent required as to the principal witness in case of perjury." Cr. code, sec. 207. It would seem that the language of our statute is sufficiently explicit to determine this question. Indeed, the language is so plain upon this point that it leaves no room for construction. Any female who is of good repute for chastity is within the protection of the statute. No condition is made that she must have deserved that reputation by a correct and pure life, and we cannot extend the statute by construction beyond its plain meaning. Similar statutes in other states have been so construed. Bowers v. State, 29 Ohio St. 542; State v. Bryan, 34 Kan. 63, 8 P. 260. In some of the states the statutes defining this crime are essentially different from ours. By the Missouri statute it is made a crime for any person "under promise of marriage" to "seduce and debauch any unmarried female of good repute." Under statutes like this there has been some difference of opinion as to the proper construction of the word seduce. Some courts have held that this word in itself means to corrupt and to draw aside from the path of virtue, and that one cannot be drawn from the path of virtue unless she is honestly pursuing that path, and that the charge of seduction involves the allegation that the woman seduced was at and prior to the time of her ruin of pure character and leading a virtuous life, so that in making such allegations she must be prepared upon the trial to establish its truth. State v. Reeves, 97 Mo. 668, 10 S.W. 841. Other courts perhaps have taken a different view, and have held that the words "of good repute for chastity" indicate that the general reputation of the prosecutrix can be shown, but not specific acts of immorality. A statute which provides that the female must be of "previous chaste character" is, of course, also essentially different from ours. Our statute does not make it necessary to prove that the defendant has seduced his victim in the common law meaning of that word. The statute itself defines what shall be seduction. If the defendant was over 18 years of age and under promise of marriage had unlawful intercourse with a female of good repute for chastity, he is guilty of seduction without regard to whether the female so seduced was entitled to that good reputation. This contention of the defendant was properly overruled.

4. The defendant requested an instruction to the jury to the effect that, if the illicit intercourse was procured under a promise on the part of the defendant to marry the prosecutrix in case such intercourse should result in pregnancy, this would not be such a promise of marriage as the law contemplates, and the defendant should be acquitted. The law is correctly stated in this request for an instruction. A satisfactory reason for such a rule of law is given by the supreme court of Michigan in People v. Smith, 132 Mich. 58, 92 N.W. 776:

"Is a promise to marry, conditioned upon the illicit intercourse resulting in pregnancy, calculated to induce a pure woman to yield her chastity? In our judgment, this question admits of but one answer. Such a promise has no tendency to overcome the natural sentiment of virtue and purity. The woman who yields upon such a promise is in no better position than as though no promise whatever had been made. No wrong is done her if she is put in the class with those who commit the act to gratify their desire. She was willing to lose her virtue if some provision was made to conceal its loss. If pregnancy does not result from the illicit intercourse, her conduct is in every respect, as culpable as that of her companion. If pregnancy does result, his conduct becomes...