Hausenfluck v. Commonwealth

• Decision Date: 31 January 1889
• Citation: 85 Va. 702,8 S.E. 683
• Parties: HAUSENFLUCK v. COMMONWEALTH.
• Court: Virginia Supreme Court

8 S.E. 683

(85 Va. 702)

HAUSENFLUCK

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia

January 31, 1889

1. Seduction—Criminal Prosecution—Evidence.

Code Va. §§ 3677, 3679, make the seduction of an unmarried female of previous chaste character, under promise of marriage, a felony, and provide that no conviction shall be had upon the uncorroborated testimony of the female. On a trial for such seduction the female testified to all the facts essential to the crime, and there was evidence that defendant caused her to be taken to a lying-in hospital, where she was confined, and that he then stated that he had seduced her, and that she had previously been respectable. Another witness testified that defendant and the girl once arranged an elopement, her father being opposed to their marriage; but that the prisoner did not arrive in time, owing to an accident. Another life-long acquaintance testified to the girl's good character and to defendant's frequent attentions to her. There was evidence to show bad conduct on the part of the girl. Held, under section 3484, providing that when a verdict is asked to be set aside as contrary to the evidence, and the evidence, and not the facts proved, is certified, the rule of decision in the appellate court shall be the same as if the case arose on a demurrer to the evidence, that the evidence supported a verdict of guilty.

2. Same—Relevancy.

On such a charge, the fact that a child was born is relevant to show the fact of seduction.

3. Same.

Evidence of defendant's repeated promises of marriage after the seduction is competent to explain the delay in the prosecution, and to corroborate the statement of the girl that she had never had intercourse with any other man.

4. Same—Admissions.

The testimony of the matron of the hospital as to admissions by defendant that he had seduced the girl, who had been respectable, and that he intended to marry her, is competent to support the evidence of the prosecutrix.

5. Witness—Examination—Leading Questions.

The matron testified that defendant stated on that occasion that he intended to marry the prosecutrix when the child was born and put into the hospital. The commonwealth's attorney was permitted to ask her whether defendant confessed or admitted that he seduced the prosecutrix under promise of marriage, to which she answered that he did, and qualified her answer by adding the same statement as before. She seemed reluctant to testify or slow of understanding. Held not error, as the question did not result in anything material, and for the further reason that leading questions are discretionary with the trial court.

6. Seduction—Indictment.

An indictment for such offense containing two counts, the seduction being laid on different days in each count, is good on demurrer.

7. Criminal Law—Trial—Election or Counts.

The prosecutor will not be compelled to elect on which of the counts he will proceed. ¹

8. Constitutional Law—Due Process of Law—Grand Jury.

Code Va. § 3977, providing that a special grand jury shall consist of not less than six nor more than nine persons, does not violate Const. U. S. amends. 5, 14, which provide that no man shall be held to answer for an infamous crime unless on presentment or indictment of a grand jury, or be deprived of liberty without due process of law.

Error to circuit court, Shenandoah county.

Indictment for seduction against S. E. Hausenfluck, found in the county court by a grand jury impaneled under Code Va. § 3977, providing that a special grand jury shall consist of not less than six nor more than nine men. Defendant was convicted, and applied to the circuit court for a writ of error, which was denied, and he brings error to the order of refusal.

The Attorney General, for the Commonwealth. U. C. Allen and W. R. Alexander, for plaintiff in error.

Lacy, J. This is a writ of error to a judgment of the circuit court of Shenandoah county, rendered on the 25th day of June, 1888, refusing a writ of error to a judgment of the county court of said county rendered at the April term of the said county court, 1888. The case is as follows: The plaintiff in error was indicted, tried, and convicted in the county court of Shenandoah county at the April term, 1888, for the seduction of Mary Alice Rinker, a girl under 21 years of age, of a previous chaste character. At the trial he was found guilty by the jury, and his punishment fixed at two years in the penitentiary. Several exceptions were taken during the trial, and, after a verdict, a motion was made to set it aside and grant the accused a new trial, which motion the court overruled; whereupon the plaintiff in error applied for a writ of error to the circuit court of said county, which was refused, but which, upon application, was awarded by one of the judges of this court.

The first assignment of error is that the county court erred in overruling the motion of the defendant to quash the indictment because the indictment was found by a grand jury consisting of only seven members; that the fourteenth article of amendment to the constitution of the United States forbids any state to deprive any man of his liberty except by "due process of law; " that "due process of law" has a meaning well understood and thoroughly settled by repeated decisions; that an indictment is essential in all felonies, and there can be no indictment except it be made by a regularly constituted grand jury, according to law; that it would be just as well to have a grand jury of one as a grand jury of seven, and provide that the prosecuting officer shall be the grand jury; if competent to substitute seven for twenty-three, it is just as competent to substitute information for indictment, and do away with grand juries altogether; that an indictment under the constitution of the United States means an indictment preferred by a grand jury impaneled in accordance with the rules of the common law; and that, although the statute of this state provides for such a grand jury as shall be composed of not less than six nor more than nine, a grand jury so constituted is unlawful, because such an act is unconstitutional. The fourteenth article of amendment to the constitution of the United States does not provide for the number of persons to constitute a grand jury, nor does the fifth article of amendment to the said constitution so provide. The provision is that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury. To look to the construction of a grand jury, and of whom it shall be composed, we look to the statutes of the states; if they are silent, we may look to the common law, which is in force in this state, except so far as it has been modified or altered by statute. The state may compose the grand juries in her courts as by law shall be provided, and the number may be greater or less, as the law-making power may prescribe. There is no constitutional limitation on this question. If the law provides for a grand jury of seven, then an indictment by a grand jury of seven is due process of law. There is no prescription as to the number necessary to compose a grand jury, other than that to be found in the statute; and, the grand jury in this case having been made up and constituted as the law prescribes, there is no error in the ruling of the county court on this point.

The next assignment of error which we will consider is as to the action of the county court in overruling the motion to set aside the verdict of the jury, and grant to the accused a new trial. Code Va. § 3677, provides: "If any person, under promise of marriage, 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 morethan ten, years. " And section 3679 provides that no conviction shall be had under this section on the testimony of the female seduced, unsupported by other evidence. The evidence is certified by the court where the case was tried, and the case must be considered here as upon a demurrer to evidence by the plaintiff in error, as is provided by section 3484 of the Code of Virginia, which provides that when a case at law, civil or criminal, is tried by a jury, and a party excepts to the judgment or action of the court in granting or refusing to grant a new trial on a motion to set aside the verdict of a jury on the ground that it is contrary to the evidence, or when a case at law is decided by a court or judge without the intervention of a jury, and a party excepts to the decision on the ground that it is contrary to the evidence, and the evidence (not the facts) is certified, the rule of decision in the appellate court, in considering the evidence in the case, shall be as on a demurrer to the evidence by the party excepting; that is, to consider the evidence as if the demurrant had admitted all that could reasonably be inferred by a jury from the evidence given by the other party, and waived all the evidence on his part which contradicts that offered by the other party, or the credit of which is impeached, and all inferences from his own evidence which do not necessarily flow from it. In this case the prosecutrix, or the female seduced, proved the seduction; that it was under a promise of marriage; that she was before that time a woman of chaste character. This evidence must be supported by other testimony, as is required by section 3679 of the Code of Virginia, as we have seen.

In the certificate of evidence it is set forth that when this female was carried to the lying-in hospital, in Baltimore city, that she was entered there by the prisoner, who stated to the matron that he had seduced the girl, and that she had been respectable before that act on his part, and that ...