Evans v. Commonwealth

• Decision Date: 23 April 1945
• Parties: EVANS. v. COMMONWEALTH.
• Court: Virginia Supreme Court

33 S.E.2d. 636

183 Va. 775

EVANS.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

April 23, 1945.

Error to Circuit Court, Wise County; George Morton, Judge.

Leonard Lee Evans was convicted of seduction under a promise of marriage, and he brings error.

Reversed and remanded.

Before CAMPBELL, C. J, and HOLT, HUDGINS. GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

M. W. Vicars and H. J. Kiser, both of Wise, for plaintiff in error.

Abram P. Staples, Atty. Gen, and V. P. Randolph, Jr., Asst. Atty. Gen, for the Commonwealth.

CAMPBELL, Chief Justice.

The accused, Leonard Lee Evans, was arraigned in the Circuit Court of Wise county upon this indictment:

"The Grand Jurors of the Commonwealth of Virginia, in and for the body of said County of Wise and now attending said court at its January term, in the year 1944, upon their oaths, do present that Leonard Lee Evans on the........ day of........, 1943, within one year next prior to the finding of this indictment, in said county of Wise, did unlawfully and feloniously, under promise of marriage, seduce and have carnal illicit knowledge of one Delsie Galloway, a female of previous chaste character, against the peace and dignity of the Commonwealth of Virginia."

Before pleading, the accused moved the court to quash the indictment on the groundthat the indictment did not allege, as required by section 4410 of the Code, that Delsie Galloway was an "unmarried" female. The motion to quash was overruled by the court and thereupon, the attorney for the Commonwealth moved the court to permit an amendment to the indictment by inserting after the words "Delsie Galloway" and before the word "female" the words "an unmarried." This motion was granted and accused duly objected and excepted to the ruling of the trial court. Upon a plea of not guilty, the trial was entered into and, due to the inability of the jury to agree, resulted in a mistrial.

At the April, 1944, term of the court, the motion to quash the indictment was renewed, the motion was overruled and exception was duly taken by accused. Thereupon, trial was entered into, which resulted in a verdict of guilty and the punishment of accused was fixed at two years in the penitentiary. The motion to set aside the verdict was overruled and judgment was accordingly pronounced.

Section 4410 of the Code reads, inter alia: "If any person, under the promise of marriage, conditional or unconditional, seduce and have illicit connection with any unmarried female of previous chaste character, or if any married man seduce and have illicit connection with any unmarried female of previous chaste character, he shall be guilty of a felony, and, upon conviction thereof, shall be punished by confinement in the penitentiary not less than two, nor more than ten years."

At common law the crime of seduction was unknown.

In Anderson v. Commonwealth, 1826, 5 Rand. 627, 26 Va. 627, 16 Am.Dec. 759, it was held that the offenses of adultery, fornication and the like could not be punished as common-law offenses, unless accompanied with other circumstances, such as the public commission of the act or a conspiracy. In a note appended to that decision, Brockenbrough, J., had this to say: "There is no statute, either in England, or in Virginia, against the offence of seduction, except those which relate also to abduction; and these only apply where the female is under sixteen years of age."

Thus the law was in Virginia until the Acts of 1877-8, page 283, when the General Assembly enacted the statute which was carried into the Code of 1887 as section 3677, and which is in all respects the same as section 4410 of Michie's Code, supra.

Section 4866 of the Code provides that " * * * No person shall be put upon trial for any felony, unless an indictment or presentment shall have first been found or made by a grand jury in a court of competent jurisdiction."

In Minor's Synopsis of the Law of Crimes and Punishments, the constituents essential to the validity of the indictment are thus set forth: "All the constituents of the offense, whether common law or statutory, must be set forth with precision. Hence it is safe to set forth a statutory offense in the very words of. the statute, and in no case can argument or inference supply the total want of averment of an essential part of the offense, although the use of synonymous words will suffice." Citing authorities.

Since seduction is a statutory offense, it is imperative that the indictment follow the language of the statute.

In Mills v. Com, 93 Va. 815, 818, 22 S.E. 863, Keith, P., in construing the statute, used this language: "To constitute the crime of which the defendant has been found guilty, it is necessary to show --First, the seduction; secondly, the promise of marriage; and, thirdly, the previous chaste character of the female seduced."

A woman who has been married and divorced is not an "unmarried female" within the intendment of section 4410 of Michie's Code, 1942. Jennings v. Commonwealth, 109 Va. 821, 63 S.E. 1080, 21 L.R.A..N.S., 265, 132 Am.St.Rep. 946, 17 Ann.Cas. 64.

This doctrine was reaffirmed in Judd v. Commonwealth, 146 Va. 267, 272, 135 S.E. 710, 712, 713. Judge Burks, speaking for the court, said: "In order to warrant a conviction under section 4410 of the Code, there must be (1) a promise of marriage, conditional or unconditional; (2) seduction of an unmarried female; (3) illicit connection with such female; and (4) the female must be of previous chaste character."

Since all four constitutents of the crime of seduction must be proven before an accused is found guilty, it follows as a corollary that all four constituents must be alleged in the indictment upon which the accused is put to trial.

In the brief of the Attorney General, this is said: "It may very well be that the indictment was defective before the amendment but the only claim made on the indictment before...