Hoff v. State

Decision Date15 February 1904
Citation35 So. 950,83 Miss. 488
CourtMississippi Supreme Court
PartiesWILLIAM W. HOFF v. STATE OF MISSISSIPPI

FROM the circuit court of Amite county. HON. JAMES H. PRICES Special Judge.

Hoff appellant, was indicted, tried, and convicted of seduction and appealed to the supreme court. The facts on which the decision turned are stated in the opinion of the court.

The indictment, leaving off the formal part, is as follows "William W. Hoff, late of the county aforesaid, in the county aforesaid, on September 21, 1903, did then and there unlawfully and feloniously seduce and have illicit intercourse with one Ludie Jackson, a female child under the age of sixteen years old, of previous chaste character." The defendant demurred to the indictment on several grounds among them being that the female is not alleged to have been unmarried. The demurrer was overruled. The defendant was sentenced to the penitentiary for ten years. His motion for a new trial was overruled.

Reversed and remanded.

Ratcliff & Wall, for appellant.

The indictment fails to allege the female seduced was unmarried.

The word "unmarried" is essential in an indictment for seduction whether under § 1298, code of 1892, or § 1004.

Suppose that a female under the age of sixteen years was married, could she then be seduced, or in other words, can a married female under the age of sixteen years be seduced? We take the position that she cannot. If this be true then the averments in the indictment must specifically allege and charge that the female seduced was unmarried, if not it is fatally bad. It was held in the case of Powell v. State, 20 So. 4, that previous chaste character meant that the female alleged to have been seduced had never had sexual intercourse with any other person. Therefore we think it logically follows, drawing our conclusions from the opinion rendered by Judge Woods in the above mentioned case, that a married female, whether under the age of sixteen or over the age of sixteen, cannot be seduced. Then if this be true it must unquestionably follow that the indictment must show affirmatively on its face that the female seduced, whether over the age of sixteen or under the age of sixteen, was unmarried.

It was held in Cirk v. Long, U. C. C. P., 363, and Anderson v. Rainey, 12 U. C. C. P., 536, that a widow cannot be seduced as an unmarried woman. The district attorney said in his argument to the jury, "No living soul had denied that defendant seduced this little girl." Surely this referred to defendant, and was an effort to induce the jury to convict because he had so testified. Yarbrough v. State, 70 Miss. 593; Brown v. State, 81 Miss. 143; Bunckley v. State, 77 Miss. 540.

William Williams, attorney general, and E. H. Ratcliff, district attorney, for appellee.

It is not necessary to allege in an indictment under Code 1892, § 1004, that the female seduced was unmarried. The indictment is in the language of the' statute and is good.

As to the alleged improper remarks of the district attorney in his argument to the jury, we call attention to the fact that the special bill of exception taken to these remarks only purports to give fragments of sentences and garbled statements culled from different parts of the argument to suit the purpose of counsel, and we respectfully submit that the special bill of exception is not such as the court in fairness can take recognizance of. It is utterly impossible for the court to say that these remarks were proper or improper unless the whole sentences were set out in the bill of exceptions and the context taken down and embodied in it. It is scarcely to be supposed that a prosecuting speech is ever made but that some isolated words could be selected therefrom which, taken alone, would appear exceedingly improper, but which, were the whole context before the court might appear as not only harmless but entirely legitimate. It is the duty of one taking exceptions to remarks of opposing counsel to set out in his bill of exceptions at least a sufficiency of what was said to enable the court to pass intelligently upon it. If it be true that defendant's counsel can seggregate from their proper connection words which, when taken alone, appear improper, although the whole of what was said in that immediate connection would assume quite a different aspect, as was done in this case, then indeed there is no security in trials, no stability in the work of courts, to say nothing of the unfairness of the practice. Take for instance the remark alleged to have been made by the district attorney and quoted in a special bill of exceptions in reference to the letter written by the defendant to the prosecutrix, wherein the district attorney is charged with saying while holding the letter, "and nobody on earth denies that he wrote it," and suppose the full context would show that he said "of all the witnesses introduced here by the defendant not a soul on earth denies that he wrote it, or insinuates that it is not in his handwriting, or questions its authenticity, then the remarks would be entirely proper, especially so when the defendant's counsel had urged to the jury that they had shown it was not authentic. Or, take the other piece of a sentence they charged him with using, "No living soul has denied that the defendant seduced this little girl;" and suppose the full sentence would read like this, "No living soul has denied that this defendant seduced this little girl while they were on the stand and had the opportunity to do so. The defendant's counsel, it is true, deny it, but...

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18 cases
  • Winchester v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 6 Junio 1932
    ......263, 46 So. 537; Drane v. State, 92 Miss. 180, 45 So. 149; Smith v. State, 87 Miss. 627, 40 So. 229; Reddick v. State, 72 Miss. 1008, 16 So. 490; Sanders v. State, 73 Miss. 444, 18 So. 541; Yarbrough v. State, 70 Miss. 593, 12 So. 551; Sanders v. State, 73 Miss. 444, 18 So. 541; Hoff v. State, 83 Miss. 488, 35 So. 950. . . The. next special bill of exceptions was taken to the argument of. the district attorney, wherein he used as shown by the bill. the following language, to-wit:. . . "Not. a single soul has said she was not shot as this Darden ......
  • Livingston v. State, 57198
    • United States
    • United States State Supreme Court of Mississippi
    • 27 Abril 1988
    ...50 So. 626 (1909); Prince v. State, 93 Miss. 263, 46 So. 537 (1908); Smith v. State, 87 Miss. 627, 40 So. 229 (1906); Hoff v. State, 83 Miss. 488, 35 So. 950 (1903); Sanders v. State, 73 Miss. 444, 18 So. 541 (1895); Reddick v. State, 72 Miss. 1008, 16 So. 490 (1895); Yarbrough v. State, 70......
  • Wright v. State, 2005-KA-01729-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • 5 Abril 2007
    ...50 So. 626 (1909); Prince v. State, 93 Miss. 263, 46 So. 537 (1908); Smith v. State, 87 Miss. 627, 40 So. 229 (1906); Hoff v. State, 83 Miss. 488, 35 So. 950 (1904); Sanders v. State, 73 Miss. 444, 18 So. 541 (1895); Reddick v. State, 72 Miss. 1008, 16 So. 490 (1895); Yarbrough v. State, 70......
  • Griffin v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 14 Febrero 1990
    ...445 (Miss.1972); Prince v. State, 93 Miss. 263, 46 So. 537 (1908); Smith v. State, 87 Miss. 627, 40 So. 229 (Miss.1906); Hoff v. State, 83 Miss. 488, 35 So. 950 (1903). Yet, this Court held these comments, if error, did not "constitute reversible error" (Hawkins, Along came Russell v. State......
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