Hoskins v. Commonwealth

• Decision Date: 07 May 1920
• Citation: 188 Ky. 80,221 S.W. 230
• Parties: HOSKINS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

221 S.W. 230

188 Ky. 80

HOSKINS v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 7, 1920

Appeal from Circuit Court, Daviess County.

R Hoskins was convicted of seducing a woman under 21 years of age under promise of marriage, and he appeals. Affirmed.

Clements & Clements and Louis I. Igleheart, all of Owensboro, for appellant.

Chas I. Dawson, Atty. Gen., and Thos. B. McGregor, Asst. Atty Gen., for the Commonwealth.

THOMAS J.

From a judgment of the Daviess circuit court, convicting him of the offense of seducing a woman under 21 years of age under promise of marriage, and fixing his punishment at confinement in the state penitentiary for the term of 1 year, the appellant, R. Hoskins, prosecutes this appeal, and seeks a reversal of the judgment upon a number of grounds stated in his motion for a new trial, which was overruled.

We will discuss only such grounds as we deem of sufficient merit to require it. It is first insisted that there should have been a peremptory instruction to the jury, directing it to return a verdict of not guilty upon the ground that the evidence is insufficient to authorize a conviction of the appellant of the offense charged, which is a statutory one, and is denounced by section 1214, Kentucky Statutes. In so far as it is pertinent to the question raised, it is in these words:

"Whoever shall, under promise of marriage, seduce and have carnal knowledge of any female under twenty-one years of age, shall be guilty of a felony and, upon conviction thereof, shall be confined in the penitentiary not less than one year nor more than five years."

A disposition of this question requires at our hands a brief statement of the facts as shown by the testimony.

The prosecutrix, Monamae Woodward, at the time of the commission of the alleged offense in April, 1918, was between 18 and 19 years of age. She was reared in Daviess county by poor parents, and some time in 1916 she went to Evansville, where she had relatives, and procured a position in some factory. She was then about 16 years of age, and soon began associations with a man by the name of Gerard, who, according to her testimony, engaged himself to marry her and afterwards had intercourse with her. She broke off associations as well as relations with Gerard in October, 1916, and she testified that she had lived a virtuous, upright life from that time until her seduction by the defendant, which fact is not contradicted by any witness who testified in the case, nor do we think it is contradicted by any circumstance appearing in the record. During a part of the time that Miss Woodward worked in Evansville her parents also resided there, but they returned to their old neighborhood in Kentucky some time about the first of the year 1918. Just before Easter of that year the daughter visited her parents in Kentucky, and did not go back to Evansville until perhaps the latter part of May. While she was at home the defendant began visiting her, and shortly thereafter, according to her testimony, they became engaged to be married. The following Sunday after entering into that engagement the seduction which is the foundation of this prosecution occurred.

The prosecutrix again returned to Kentucky about the 1st of July, and during that month and a part of August the defendant was frequently in company with her, at which times they discussed their prospective marriage, and the promise to marry was frequently repeated. It was postponed, however, by mutual agreement until defendant returned from the army, in which he was about to enlist or be drafted. He did enter the army about September 1 of that year, and did not get his discharge until a few days before February 7, 1919, when, according to the testimony of Miss Woodward, he called upon her at her father's house, where he affectionately met her and their engagement was discussed, as was also the prospective marriage. This meeting, as well as what occurred at the time, is also testified to by a number of other witnesses introduced by the commonwealth. The defendant, however, denies any such meeting, and he establishes by his father, mother, and brother an alibi, showing that he was at his home at the time and upon the occasion when the commonwealth witnesses say he called upon the prosecutrix. However, the record convinces us that the testimony of the prosecuting witnesses is more probably true upon this point than is that of the defendant and his witnesses.

About the first of the year 1919 the prosecutrix gave birth to a child, which lived but a short while, and she says that her pregnancy was the result of the unlawful intercourse between herself and the defendant. She furthermore testified that at the time the defendant requested her to marry him she told him about her former relations with Gerard, and that he answered, in substance, that his affections for her were such that he would not allow that circumstance to prevent the marriage.

Defendant admits his intercourse with the prosecutrix, but says that it occurred in July, 1918, instead of April prior thereto, and that he at no time ever promised or solicited the prosecutrix to marry him.

Upon the essential issue of a promise of marriage a number of letters written by defendant to the prosecutrix after he went into the army, and extending up to a short while before his discharge, were introduced by the commonwealth over the objections of the defendant. These letters are couched in crude language, but they are fervid with love and affection on the part of the defendant for the prosecutrix, as well as a burning desire on his part to be released from the army so that he might marry her. Some of them show that defendant had been informed of the pregnancy of Miss Woodward and of the fact of the birth of her child, and because they show this fact is one of the grounds urged in support of defendant's objection to their introduction.

It is earnestly insisted that the evidence is not sufficient to show, or to authorize the jury to find, that the seduction with which defendant is charged was induced by any promise of marriage made by defendant, and that it is just as inferable from the testimony that the unlawful intercourse was engaged in by the prosecutrix through lustful desire on her part, which, if true, there could be no conviction under the statute, and for this reason the peremptory instruction asked for should have been given.

After testifying to the promise of marriage, the prosecutrix was asked what transpired at the time the defendant had the first act of intercourse with her, and she answered:

"I couldn't tell that I don't guess, but I know that he persuaded me to, but I don't know the words that was passed--just what he said."

Immediately following that answer she again stated that the defendant promised to marry her before the seduction. She was then asked:

"State whether or not you submitted to this relation with him because he had promised to marry you."

The defendant objected to the question, which was sustained, the court saying:

"I think that is a conclusion you are asking about."

The commonwealth made no avowal as to what the answer of the witness would be if permitted to answer the question.

In one of the letters written by defendant to Miss Woodward, he stated, in substance, that he would stand by her in all danger, and said, "I won't go back on my word." On cross-examination the prosecutrix was asked what defendant meant by the use of the word "danger" in his letter, to which she answered:

"He thought if anything happened. When he persuaded me I told him I was afraid to; I would rather not until we was married, and he said he would stand by me and would do what he said he would."

That the female in a case of this kind must yield and submit to the intercourse "because of and under the promise of marriage," and not because of a lustful desire on her part, is well established. Reberson's Criminal Law,§ 492, and Jordon v. Commonwealth, 180 Ky. 379, 202 S.W. 896, 1 A. L. R. 167.

The same authorities also hold that it is equally essential to a conviction for the crime denounced by the statute that the promise of marriage must not be a conditional one, as, for instance, that the defendant would marry the female if she became pregnant as a result of the intercourse.

It is likewise true that in order to a conviction under this charge it must appear that the seduced female was of chaste character at the time of the intercourse. However, the fact that she at one time left the path of virtue and became unchaste will not defeat a conviction if the evidence shows her to be a chaste woman for a reasonable time immediately before such intercourse. Berry v. Commonwealth, 149 Ky. 398, 149 S.W. 824; Commonwealth v. Wright, 27 S.W. 815, 16 Ky. Law Rep. 251; Smith v. Commonwealth, 32 S.W. 137, 17 Ky. Law Rep. 541; Hudson v. Commonwealth, 161 Ky. 257, 170 S.W. 620.

We do not think the evidence insufficient to sustain a...