In re Oscar Lewis

• Decision Date: 10 July 1903
• Docket Number: 13,596
• Citation: 73 P. 77,67 Kan. 562
• Parties: In re OSCAR LEWIS, Petitioner
• Court: Kansas Supreme Court

73 P. 77

67 Kan. 562

In re OSCAR LEWIS, Petitioner

No. 13,596

Supreme Court of Kansas

July 10, 1903

Decided July, 1903.

Original proceeding in habeas corpus.

Petitioner remanded.

SYLLABUS

SYLLABUS BY THE COURT.

ILLICIT INTERCOURSE--Subsequent Marriage Not a Bar. The subsequent marriage of the defendant to the injured female is not a bar to a prosecution under section 36 of the crimes act (Gen. Stat. 1901, § 2021), providing a penalty for obtaining illicit connection, under promise of marriage, with any female of good repute under twenty-one years of age.

W. S. Hyatt, for petitioner.

C. C. Coleman, attorney-general, E. L. Burton, county attorney, and J. W. Iden, for respondent.

MASON J. All the Justices concurring.

OPINION

MASON, J.:

Oscar Lewis was arrested on a warrant issued April 2, 1903, charging him with having, on June 1, 1902, obtained illicit connection, under promise of marriage, with Nellie Meador, she being of good repute and under twenty-one years of age. Upon a preliminary examination he was held to answer the charge. It is shown that on November 27, 1902, he was married to said Nellie Meador, and he now asks his discharge upon habeas corpus on the ground that such marriage is a complete bar to the prosecution. The state claims, and the claim is supported by the evidence, that the defendant abandoned his wife on the morning after the marriage, but this does not affect the legal aspect of the matter.

In the following cases it has been held that a subsequent marriage is a bar to a prosecution for seduction: Commonwealth v. Eichar, 4 Pa. L. J. Rep. 326; People v. Gould, 70 Mich. 240, 38 N.W. 232, 14 Am. St. Rep. 493; The State v. Otis, 135 Ind. 267, 34 N.E. 954, 21 L. R. A. 733. The law is so stated in Wharton on Criminal Law, 10th edition, volume 2, page 1760, and Lawson's Criminal Defenses, volume 5, page 780. These statements of the text-writers, however, are based solely upon the cases just cited, and therefore add little to their authority. The Michigan and Indiana cases, moreover, merely followed the reasoning in Commonwealth v. Eichar, supra, so that the soundness of the doctrine in principle can be determined from an examination of the opinion in that case. Its full text upon this point is as follows:

"The evidence fully establishes the fact that, six months previous to the finding of this indictment by the grand jury, the defendant was legally married by the Rev. Mr. Rugan, of the Lutheran church, to the female whom he is charged with having seduced. She is by the laws of God and man his wife, and as such is entitled to all the rights which are incident to that relation. Can he now be convicted and punished for her seduction before marriage? It is not the carnal connection, even when induced by the solicitation of the man, that is the object of this statutory penalty, but it is the seduction under promise of marriage which is an offense of so grievous a nature as to require this exemplary punishment. What promise? One that is kept and performed? Clearly not, but a false promise, broken and violated after performing its fiendish purpose. The evil which led to the enactment was not that females were seduced and then made the wives of the seducer, but that after. the ends of the seducer were accomplished his victim, was abandoned to her disgrace. An objection to this construction is that it places within the power of the seducer a means of escaping the penalty. So be it. This is far better than by a contrary construction to remove the inducement to a faithful adherence to the promise which obtained the consent."

Our attention has not been called to any actual adjudication against this doctrine, nor have we discovered any. However, in State v. Bierce, 27 Conn. 319, 324, in considering the question whether it could be shown in defense that the promise of marriage was made in good faith, and broken only by reason of the subsequent misconduct of the complaining witness, the court said:

"Even if he had performed his promise to marry her, we do not perceive how it could plausibly be urged that it would be any answer to the charge of the previous seduction; however, such partial reparation might be viewed as a circumstance to mitigate the punishment. As to the claim founded on the misconduct of the female subsequent to the illicit connection between her and the defendant, it is a sufficient answer that the offense was committed and complete before such misconduct took place, and that, whatever effect it might have upon a claim by her upon him for the breach of his promise of marriage, or however it might be considered by the court in affixing the punishment for the offense charged upon the defendant, it could not relate back to render legal or innocent a violation of the statute for which he had already become amenable."

In State v. Wise, 32 Ore. 280, 282, 50 P. 800, it was said:

"But, as we take it, the gravamen of the offense is the act of seducing and debauching an unmarried female, of previous chaste character, under or by means of a promise of marriage; and the crime is complete as soon as the act is accomplished, although a subsequent marriage is by statute a bar to a prosecution."

In People v. Hough, 120 Cal. 538, 52 P. 846, 65 Am. St. Rep. 201, the court held:

"When a man induces an unmarried female of previous chaste character to submit her person to him by reason of a promise of marriage upon his part, the seduction has taken place--the crime has been committed. The succeeding section, which provides that the marriage is a bar to a prosecution, clearly recognizes that the crime has been committed when the promise has been made and the intercourse thereunder has taken place. There may be incidental references in some cases indicating that a refusal upon the part of the man to carry out the promise is a necessary element of the offense. (People v. Samonset, 97 Cal. 448, 32 P. 520; State v. Adams, 25 Ore. 172, 35 P. 36, 22 L. R. A. 840, 42 Am. St. Rep. 790.) But such is not the fact."

In Clark and Marshall's Law of Crimes, page 1122, the authors say:

"By express provision of the statutes in most states, the subsequent intermarriage of the parties is a bar to a prosecution for seduction. But this is not the case in the absence of such a provision, for, as was shown in another place, the person injured by a crime cannot prevent a prosecution by afterwards condoning the offense."

Notwithstanding the authorities cited in support of the contention of defendant, we are not disposed to yield assent to it. Being based upon the Pennsylvania case, they depend for their force, as it does, upon the soundness of the reasoning by which it is supported, and this reasoning is based less upon the language of the statute than upon considerations of public policy, and the decision borders upon judicial legislation.

While the following language of Mr. Justice Johnston in The State v. Newcomer, 59 Kan. 668, 54 P. 685, was used in a case of statutory rape, it is equally applicable...