Graham v. McReynolds

• Decision Date: 01 September 1891
• Citation: 18 S.W. 272
• Parties: GRAHAM v. McREYNOLDS.
• Court: Tennessee Supreme Court

18 S.W. 272

GRAHAM v. McREYNOLDS.

Supreme Court of Tennessee.

September Term, 1891.

Error to circuit court, Marion county.

Action by Lucretia McReynolds, now Vann, against John Graham, for seduction and breach of promise to marry. Verdict and judgment for plaintiff. Defendant brings error. Reversed. This is the second appeal. For prior report, see 12 S. W. Rep. 547.

Ex-Gov. Marks, Geo. W. Pickle, and Donaldson, Eakin & Marchbanks, for plaintiff in error. Clift, Shepherd, Ingersoll, Spears, Brown & Pope, for defendant in error.

WEBB, Special Judge.

This suit was brought by the defendant in error against the plaintiff in error, in the circuit court of Marion county, to recover damages for an alleged seduction and breach of marriage promise. The case was tried in the court below in July, 1891, upon proper pleadings, when there were verdict and judgment for the plaintiff, and her damages assessed at $15,000. The defendant's motion for a new trial was overruled, and he has appealed in error to this court. The case was before us at the September term, 1889, upon the appeal of plaintiff in error from a verdict for a larger sum than $15,000, and was reversed for errors of law, and remanded for a new trial, so that we now have it before us for the second time.

Error is assigned to the charge of the trial judge in one particular only. That portion of the charge complained of is as follows: "The fact that a man and woman, previously virtuous, engage in acts of illicit sexual intercourse, does not, of itself, constitute seduction, but there must be some previous inducement, promise or artifice, deception, or overpersuasion by the man, followed by sexual intercourse as the result of such promise, inducement, or overpersuasion, to constitute the offense of seduction. The willingness of the woman to yield her virtue, and the willingness of the man to despoil her of it, does not, of itself, constitute the offense; but, if the woman is made willing to part with her virtue by the false or fraudulent acts, promises, inducements, or persuasion of the man, then he is guilty of seduction." The error assigned is that this portion of the charge means that mere persuasion can constitute seduction, if followed by illicit sexual intercourse as a result of such persuasion. The charge is not susceptible of this construction. His honor twice uses the term "overpersuasion" as an equivalent of "inducement," "promises," "artifice," or "deception;" and then, in the last clause above quoted, he uses the term "false or fraudulent persuasion" as an equivalent of "false or fraudulent acts, promises, or inducements." He nowhere uses the term "persuasion" as an unqualified term, but says "overpersuasion," or "false or fraudulent persuasion," and we hold that the terms used are, at least, equivalent to the terms "inducement," "promise," "artifice," or "deception." But, even if his honor had used the word "persuasion" without qualifying it, he would not have been in error. In the case of Reed v. Williams, 5 Sneed, 581, the charge of the court below was: "That it was not necessary for the plaintiff to show that the defendant had used flattery or made false promises to his daughter; that it would be sufficient if the seduction resulted from the solicitation and importunity of the defendant to the daughter to indulge in criminal intercourse, in consequence of which she consented." Judge McKINNEY, delivering the opinion of the court, held: "There is no error in this instruction. It cannot be at all important by what means, or by which of the multifarious devices of the seducer, he may have prevailed in the accomplishment of his purpose. It is enough that, by any means or arts, he tempted or persuaded his victim to the surrender of her chastity." This holding is quoted with approval by Judge FREEMAN in Franklin v. McCorkle, 16 Lea, 628; and in the same case Judge FREEMAN defines the word "seduction" to mean "the offense of a man who induces a woman to surrender her chastity."

The next error assigned is to the action of the court in relation to the testimony of Martha J. McReynolds, a witness for plaintiff below. This witness is a sister of the defendant, John Graham, and is the step-mother of the plaintiff, being the second wife of James W. McReynolds, the father of plaintiff. Plaintiff gave birth to an illegitimate child about November 26, 1886, and claims that the defendant is the child's father. On her direct examination, Mrs. McReynolds testified that in the spring of 1886 she became suspicious that something was wrong with the plaintiff, and accused her brother John of being the author of it; that John admitted his guilt; agreed to have plaintiff examined by a physician, and also agreed to marry her; and urged the witness not to disclose plaintiff's condition to her (witness') husband, or to his (defendant's) parents; that defendant afterwards took plaintiff down to his father's house, and had her examined by Dr. Cotnam, and then reported to the witness that the doctor said it was a false alarm, as plaintiff only had a bad cold. The tendency of her direct examination was to fix the guilt on her brother by his own admissions. She also testified to the antecedent purity of her stepdaughter, the plaintiff. On cross-examination the credibility of this witness was vigorously assailed by the defendant's counsel, (1) with the view of showing by her that she had previously made statements contradictory of the statements made in her direct examination, or, if she denied making such previous statements, then to contradict her by the testimony of other witnesses showing that she had made such previous statements; and (2) with the view of showing by her that the statements in her direct examination were made under the threats and duress of her husband, (plaintiff's father,) James W. McReynolds, or laying grounds for impeaching her by other witnesses, in case she denied such threats and duress. In order to correctly understand the question to be considered, it should be stated that, about the time of the death of Mrs. Graham, the mother of the witness and of defendant, which occurred in the last part of May, 1888, the witness left her husband, and went to her mother's home, about 2½ miles distant, which was also the home of the defendant, John Graham. Early in June, 1888, she filed a divorce bill against her husband, J. W. McReynolds, in which she made many charges of threats and violence indulged in by him against her; and also charges which tended to show that her husband was much dissatisfied with the will of her father, Hope Graham, Sr., and was animated by great hatred of the Graham family. Mrs. McReynolds dismissed this bill, and returned to her husband about July 11, 1888. During the short life of this divorce suit she remained at her mother's home with the defendant, and while there the alleged statements were made which are claimed to be contradictory of her direct examination. Defendant's counsel were endeavoring to impeach the witness on cross-examination, by drawing from her admissions or denials of said statements and the allegations of said divorce bill. With this view, a number of questions were propounded to the witness, reciting statements alleged to have been made by her contradictory of her statements made on her direct examination, and fixing time and place, and asking the witness if she had made such statements. The witness admitted that she had made the impeaching statements, but in every case undertook to explain that the statements were not true, and were made through the persuasion and influence of her brother John and his friends. Finally the following questions were asked and answers given: "Question. Didn't you say there, and also charge in your bill, that Mr. McReynolds drew his pistol and presented it at you, and said he intended to kill the whole damn set of Grahams? Answer. He had his pistol, and from that time on he was drinking. Q. I want to know whether you said that. A. Yes, sir. Q. Didn't you say, in the presence of Judge Turney and Capt. Donaldson, and put it in your bill, that he put his pistol in his pocket, and took up his stick and shook it a number of times over your head, cursing you and your family? A. I did say a number of times he did not know what he was doing. That nothing else would have been in the bill, if it had not been for the other trouble." At this point the counsel for defendant objected to the conduct of the witness, and asked the court to instruct the witness to confine herself to the questions and answers to them, without these remarks. The reply of the court was: "The court has already ruled on that question. I take it that Mrs. McReynolds is doing the best she can in the matter." Counsel then said: "I want to make the point that she must be confined to the questions presented to her, and that every statement volunteered with reference to those other matters is incompetent, and should be excluded. I ask your honor to exclude everything that has been said about her husband's character. By the Court: Her explanations ought to be confined to her own case. The objection is very well taken. Let all testimony be excluded, except answers to the direct questions and personal explanations."

The ruling of his honor that the witness, while admitting that she had made the impeaching statements, was entitled to explain why, how, and under what circumstances they were made, was unquestionably correct. Her credibility as a witness was being tested, and was the very thing in issue. If she admitted that she had made the impeaching statements, without more, her credibility was destroyed; whereas, she might be able, if allowed, to make such explanations as would save her credibility. It is the practice in this state to allow such explanations and to sustain by the authorities. 1 Greenl. Ev. (14th Ed.) § 462, and note 1, with cases cited. But it is insisted that the court erred in not instructing the...