Davis v. State

• Decision Date: 09 March 1922
• Docket Number: 13197.
• Citation: 110 S.E. 922,28 Ga.App. 372
• Parties: DAVIS v. STATE.
• Court: Georgia Court of Appeals

110 S.E. 922

28 Ga.App. 372

DAVIS v. STATE.

No. 13197.

Court of Appeals of Georgia, First Division

March 9, 1922

Syllabus by the Court.

Where a female had sexual intercourse at various times and places with the same man, and she consented to each act of sexual intercourse because of persuasion and promises of marriage she was seduced on the occasion of the first sexual intercourse, and could not be again seduced on any of the other occasions, and the venue of the offense was in the county where the first sexual intercourse occurred.

Error from Superior Court, Gwinnett County; Blanton Fortson, Judge.

Marion Davis was convicted of seduction, and he brings error. Reversed.

G. F Kelley and I. L. Oakes, both of Lawrenceville, for plaintiff in error.

W. O Dean, Sol. Gen., of Monroe, and O. A. Nix, of Lawrenceville for the State.

BROYLES C.J.

The accused was convicted of seduction. The indictment charged that the offense was committed in Gwinnett county, and the burden was therefore upon the state to affirmatively prove that fact. Gosha v. State, 56 Ga. 36; Futch v. State, 90 Ga. 472(2), 16 S.E. 102. Upon the trial the woman charged to have been seduced testified positively that, while the defendant by persuasion and promises of marriage had induced her to have sexual intercourse with him on various occasions, both in Gwinnett county and in De Kalb county, her first sexual intercourse with the accused took place on Stone Mountain; and the undisputed evidence was that Stone Mountain was entirely in De Kalb county.

Seduction, under our law (Penal Code of 1910, § 378), can be committed only upon a "virtuous unmarried female." Virtue is defined by both the Supreme Court and this court to be physical purity, and not merely purity of mind or heart. Woodard v. State, 5 Ga.App. 447, 63 S.E. 573; Washington v. State, 124 Ga. 426, 52 S.E. 910. It follows that a female who has, by her consent, sexual intercourse, out of wedlock, is no longer physically pure, and that if she thereafter consents to sexual intercourse, the man who engages in the subsequent sexual intercourse with her cannot be guilty of seduction. While it is true that in Tennessee and Indiana (Davis v. Young, 90 Tenn. 303, 16 S.W. 473; Ferguson v. Moore, 98 Tenn. 342, 39 S.W. 341; Haymond v. Saucer, 84 Ind. 4) it has been held that the crime of seduction can be a continuous act, we think it is otherwise under our statute. See, in this connection, Davis v. Boyett, 120 Ga. 655, 48 S.E. 187, 66 L.R.A. 258, 102 Am.St.Rep. 118, 1 Ann.Cas. 386, where the Supreme Court, in passing upon a damage suit based upon seduction, uses the following language:

"We do not think we would feel disposed to follow the courts of Tennessee and Indiana in holding that the act of seduction may be continued after the female seduced has lost her virtue. We apprehend that it would be very difficult to apply such a principle to a criminal case in which the statute of limitations was pleaded to an indictment for seduction, so as to avoid the bar of the statute, upon the ground that the act of seduction had been continuously performed for a considerable length of time after the first act of sexual intercourse between the accused and his alleged victim."

In 35 Cyc. 1331, the rule is stated as follows:

"A woman debauched by force and against her will is chaste within the meaning of the statute; but by the weight of authority it is otherwise where she has once been seduced, although by defendant."

In the case of People v. Nelson, 153 N.Y. 90(2), 46 N.E. 1040, 60 Am.St.Rep. 592, it was held:

"A woman can be seduced but once, under the statute defining seduction under promise of marriage; and the first voluntary act of sexual intercourse on her part, after she is able to understand its nature and comprehend its enormity, is the only one in which she can participate as a victim." (Italics ours.)

In Hatton v. State, 92 Miss. 651, 46 So. 708, it was held that-- "Successive acts of sexual intercourse between a man and a woman do not constitute separate seductions."

See, also, Norton v. State, 72 Miss. 136, 16 So. 267, 48 Am.St.Rep. 538, where it was held that--

"She who is, at the time of the alleged seduction, already unchaste, may be still further debauched, but not seduced." (Italics ours.)

Rape may be perpetrated in multiples, but there can never be but one seduction, under section 378 of our Penal Code, by the same man of the same woman. It might not be amiss to...