Barker v. Commonwealth.1

• Decision Date: 22 December 1894
• Citation: 90 Va. 820,20 S.E. 776
• Parties: BARKER . v. COMMONWEALTH.1
• Court: Virginia Supreme Court

20 S.E. 776

90 Va. 820

BARKER .

v.COMMONWEALTH.¹

Supreme Court of Appeals of Virginia.

Dec. 22, 1894.

Prosecution tor Seduction — Evidence — Instructions — Presumption of Innocence — Chastity of Prosecutrix— Summoning of Jury —Venire Facias.

1. On a prosecution for seduction under promise of marriage, under Code 1887, § 3677, it cannot be proved by general reputation that the house at which the prosecutrix resided was of ill repute, but this must be established by proof of particular facts.

2. A question asked a witness on a prosecution for seduction as to whether, from facts within his own knowledge, the prosecutrix resided at a bawdy house, was properly excluded as being too general and calling for a conclusion.

3. No compromise between the parties bars a criminal prosecution for a seduction under promise of marriage.

4. On a prosecution for seduction, it was proper to charge that if the jury believed from the evidence, beyond a reasonable doubt, that the prosecutrix was an unmarried female, of previous chaste character, at the time of her alleged seduction, and she was seduced by the prisoner under promise of marriage, they should find him guilty.

5. An instruction that the prisoner comes to trial presumed to be innocent, and this presumption extends to the end of the trial, and the jury should endeavor to reconcile all the evidence with this presumption, was properly refused as misleading.

6. The following instruction was correct: Although the jury may believe from the evidence, beyond a reasonable doubt, that the prisoner had illicit connection with the prosecutrix under promise of marriage, and may have thought at the time that she was a female of previous chaste character, yet they must find him not guilty if they believe she was unchaste at the time of said seduction.

7. On a prosecution for seduction, the female is presumed to he chaste, and it lies on the prisoner to prove the contrary.

8. On a prosecution for seduction, where the record fails to show that the jury were brought in under a writ of venire facias, a judgment of conviction will be reversed.

Error to Henry county court. One Barker was convicted of seduction, and brings error. Reversed.

S. A. Anderson and W. H. Gravely, for plaintiff in error.

Atty. Gen. R. Taylor Scott, for the Commonwealth.

LEWIS, P. The prisoner was indicted and committed, under section 3677 of the Code, for the seduction, under promise of marriage, of the prosecutrix, an unmarried female of previous chaste character. Numerous exceptions were taken to rulings of the court during the progress of the trial, which, so far as it is necessary to notice them, will be con sidered in the order in which they are presented.

1. The first relates to the exclusion of evidence offered by the defendant to show the character of the house—whether as a house of ill or good repute—at which the prosecutrix resided prior to her alleged seduction. It is contended that the evidence ought to have been received as relevant to the question of the previous chaste character of the prosecutrix, which was directly in issue. But we are of opinion that the character of the house could not be shown by general reputation, but only by proof of particular facts. Kenyon v. People, 26 N. Y. 203.

2. At a subsequent stage of the trial, a witness for the defendant was asked to state to the jury, from facts within his own knowledge, whether the house was a "bawdy house or a house of respectability"; whereupon the attorney for the commonwealth objected, and the court sustained the objection, but said the witness might be asked to state whether any one visited the prosecutrix at her mother's house, or anywhere else, for the purpose of prostitution or lewdness. Counsel for the prisoner declined to ask the latter question, and excepted to the ruling of the court. We are of opinion that the exception Is not well taken. The first question was altogether too general. The witness ought to have been asked to state facts, and not his conclusions.

3. The subject of the next assignment of error is the action of the court in instructing the jury that no compromise between the prosecutrix and the prisoner, or any one else, could bar a prosecution by the commonwealth for the crime charged in the indictment. There was no error in this instruction. State v. Deitrick, 51 Iowa, 467, 1 N. W. 732.

4. The court also instructed the jury that if they believed from the evidence, beyond a reasonable doubt, that the prosecutrix was an unmarried female, of previous chaste character, at the time of her alleged seduction, and that she was seduced by the prisoner by having illicit connection with her under promise of marriage, they should find him guilty. This instruction is substantially in the language of the statute, and propounds the law correctly. Illicit connection accomplished by means of a promise to marry, in a case like the present, constitutes the offense charged in the indictment and made punishable by the statute. Kenyon v. People, 26 N. Y. 203; Boyce v. People, 55 N. Y. 644; ...