Ferguson v. State

• Court: Mississippi Supreme Court
• Writing for the Court: WOODS, J.
• Citation: Ferguson v. State, 71 Miss. 805, 15 So. 66 (Miss. 1894)
• Decision Date: 12 March 1894
• Parties: M. FERGUSON v. THE STATE

15 So. 66

71 Miss. 805

M. FERGUSON v. THE STATE

Supreme Court of Mississippi

March 12, 1894

FROM the circuit court of Panola county, HON. EUGENE JOHNSON Judge.

The case is stated in the opinion.

Affirmed.

Stone &amp Lowrey, for appellant.

Section 1298, code 1892, is clearly a statute against the crime of seduction, one intended to protect womanly virtue. True the section uses the language "any woman," etc., but it presupposes chastity. Its title shows this. Besides, it refers in its concluding part to "the female seduced." See Wilson v. State, 73 Ala. 527.

It is everywhere held that when the female is unchaste there can be no seduction. 40 Ark. 482; 33 Mich. 112; 49 Cal. 9; 3 L. R A., 529; 17 Or. 238. The statute further presupposes the woman to be single. Wilson v. State, supra. The indictment is fatally defective in failing to aver that she was unmarried and chaste. 21 Am. & Eng. Enc. L., 1046; 104 Mo. 644; 1 Wis. 209; 1 Bishop Cr. Pro., § 1106.

It is not always sufficient to follow the language of the statute. Harrington v. State, 54 Miss. 490.

It was error, after the woman had testified to one act of sexual intercourse, to give in evidence others and even the birth of a child long after the alleged seduction. 33 Mich. 112; 55 N.Y. 644.

The fact whether appellant was married or unmarried could neither exculpate nor inculpate him. Evidence as to this was erroneous. See Rice on Crim. Ev., 868; 110 N.Y. 188.

Frank Johnston, attorney-general, for the state.

The authorities are divided as to whether the indictment should aver the previous chaste character of the woman. Our statute does not include the fact of chastity in its definition of the offense. I think the weight of authority and reason is in favor of the position that chastity is presumed, and need not be averted or proved by the state. 40 Ark. 487; 5 Iowa 389, 430; 32 Ib., 262; 27 Mich. 134.

It was fairly left to the jury to say whether the woman consented because of a promise of marriage.

The testimony as to repeated acts of intercourse, if erroneous, became wholly immaterial, since accused himself testified as to them, admitting the fact, and since the defense is not a denial of acts of intercourse, but of a promise of marriage.

That accused is unmarried was competent to be shown.

WOODS, J. COOPER, J., specially concurring. CAMPBELL, C. J.

OPINION

WOODS, J.

The action of the trial court in overruling the demurrer to the indictment is brought under review by the first assignment of error. The demurrer raises two questions, and we examine them in their order: (1) The indictment does not charge that the woman alleged to have been seduced was of previous chaste character; (2) the indictment does not charge that, at the time of the alleged seduction under promise of marriage, the woman was unmarried.

On the first proposition it is to be said that § 1298, code 1892, prescribes the punishment for seduction of any woman, or female child over the age of sixteen years, by means of pretended marriage or of false promise of marriage. The object is to protect the chastity of women and children above sixteen years of age (seductions in other cases being provided for in §§ 1002, 1004) from attack by false marriages or false promises of marriage. The statute, ex vi termini, is to be confined to the abuse of unmarried females and unmarried females of previous chaste character. But the previous chastity of the female said to have been seduced need be neither alleged nor proved. The presumptions of law spring from and rest upon the general knowledge and universal experience of mankind. In the multitudinous and varying conditions and ranks of womanhood, personal chastity is the rule; a lapse from virtue is the rare and painful exception. Until the rare exception has been proved, the legal presumption must prevail, and this legal presumption need be neither charged nor proved.

The adjudged cases and authorities holding the contrary view will be found, on critical examination, to stand on one or the other of two grounds, or on both, viz.: The statutes creating and defining the crime of seduction in some of the states employ the words, "previous chaste character," or similar words, and so are supposed to require those words in indictments for such offenses. This fact appears in all, or nearly all, the reported cases which we have examined in which this identical question was passed upon. This is notably true of the early and unsatisfactory case of West v. State, 1 Wis. 209, which is the foundation and perpetual reference of the later cases holding that chastity must be alleged and proved. But in these later cases, which follow the early Wisconsin decision, we shall discover, on thorough inspection of the various statutes of the several states on which the indictments founded thereon were examined, and the sufficiency of their averments passed upon, that the words "previous chaste character," or other like ones, are uniformly to be found, as we now remember the results of our extensive and protracted research on this point. Said that eminent jurist, Cooley, J., speaking for the supreme court of Michigan, in People v. Brewer, 27 Mich. 134, commenting on the early Wisconsin case of West v. State, hereinbefore referred to: "The case of West . . . was decided upon the phraseology of the Wisconsin statute, which was thought to make the 'previous chaste character' of the person seduced an ingredient in the offense. Our statute [Michigan] is very simple, and merely provides that, 'if any man shall seduce and debauch any unmarried woman, he shall be punished,'" etc. § 7697, L. 1871.

The Wisconsin court itself, in the opinion in West's case, employs this language: "The previous chaste character of the female is one of the most essential elements of the offense, made so by the express words of the statute," etc. Bishop, in his works on Statutory Crimes, § 1106, and Criminal Procedure, vol. 1, §§ 647-8, suggests, rather than declares, that the previous chaste character of the female seduced should be averted and proved in cases where these words are not in the statute. But the adjudged cases to which he refers as his authority for the suggestion do not support his text. The case of People v. Roderigas, 49 Cal. 9, is authority for the proposition involved in the Wisconsin case--West v. State--already adverted to, that when the statute creating and defining the crime makes the previous chaste character an essential ingredient in the offense, then it is necessary to charge and to prove this ingredient. In the case of Roderigas the indictment, which was demurred to, charged the prisoner with enticing an unmarried female to a house of ill fame for the purposes of prostitution, without alleging that she was of previous chaste character. On an appeal from a judgment sustaining the demurrer, the supreme court held the indictment insufficient for failing to charge the previous chaste character of the female enticed to the disreputable house, the court saying: "To entice a female into a house of ill fame or elsewhere for the purposes of prostitution is not an offense under § 265 of the penal code, nor under the provisions of the act of March 1, 1872, unless such female was of previous chaste character." By reference to the penal code of California and the act of March 1, 1872, of that state, it was, we find, made penal to entice a female of previous chaste character into a house of ill fame. The decision rests upon the proposition that it was not the enticing to a house of ill fame of any female which was made a felony, but only one of previous chaste character. The other case on which Bishop's text is supposed to rest is that of West v. State, 1 Wis. 209, already examined.

Counsel for the accused also cite us to 21 Am. & Eng. Enc. L., p. 1046, and note 7. But this authority is content to observe that "probably this averment [previous chaste character] must be made, even though the statute makes no mention of chastity, as that, as has been stated, is regarded by the courts as an essential feature of the offense." The cases cited by the author in support of this qualified and guarded remark, and found in note 7, are Polk v. State, 40 Ark. 482; People v. Clark, 33 Mich. 112; and the People v. Roderigas, 49 Cal. 9. The last-named case, as we have already seen, is not support for the rule as guardedly announced by the Am. & Eng. Enc. L. The decision in that case was upon a statute which made penal the enticing of a female of previous chaste character into a house of ill fame for the purpose of prostitution.

In Polk v. State, 40 Ark. 482, the prisoner was indicted under a statute which made penal the "obtaining carnal knowledge of any female by virtue of any feigned or pretended marriage, or of any false or feigned promise of marriage." The question on the indictment arose thus, as is stated in the opinion of the court "The defendant moved in arrest of judgment, because the indictment only stated the parties were past the age of puberty, and did not state that they were of full age, and so able to make valid and binding promises to marry without consent of parents or guardian, nor even that they were of sufficient age to be capable in law of contracting marriage. This objection is frivolous." It thus appears that the necessity for the averment and proof of previous chaste character was not raised or passed upon in any rulings in which that point was directly involved. It is worthy of remembrance, however, that in considering the proper method of impeaching the previous chaste character of the female alleged to have been seduced, the court used this language: "Since, in the female sex, chastity is the rule and want of the exception, the presumption is in favor of...