Jordan v. Commonwealth

• Decision Date: 30 April 1918
• Parties: JORDAN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

202 S.W. 896

180 Ky. 379

JORDAN v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 30, 1918

Appeal from Circuit Court, Lawrence County.

Schofield Jordan was convicted of seduction, and he appeals. Reversed.

Fred M Vinson and A. O. Carter, both of Louisa, and J. T. Swetnam of Blaine, for appellant.

Charles H. Morris, Atty. Gen., and Overton S. Hogan, Asst. Atty Gen., for the Commonwealth.

CARROLL J.

The appellant, Jordan, was indicted under section 1214 of the Kentucky Statutes for the alleged offense of seducing Agnes Hayes, a girl under 21 years of age, committed under and by virtue of a promise to marry her. A trial under the indictment resulted in the conviction of Jordan; his penalty being fixed at confinement in the penitentiary for one year. On this appeal a reversal of the judgment on the verdict is asked because of alleged errors committed by the trial court in the admission of evidence, and misconduct of the attorney for the commonwealth.

Briefly stated, and confined to such facts as may be needful in disposing of the questions raised, it appears that Jordan who was about 23, and Miss Hayes, who was about 19 years old, had the illicit intercourse, that was the basis of the prosecution, in January, 1917, and that as the result of this act of intercourse a child was born to Miss Hayes in October, 1917. Jordan, when testifying in his own behalf, admitted the act of intercourse, but denied that it was preceded or accompanied by any promise of marriage on his part, or that the subject of marriage was, at any time during or previous thereto, mentioned or discussed in any manner by them. It is said in brief for the commonwealth that Jordan admitted, during his testimony, that he was the father of the child, but we do not find in the record that he made any admission of this character, or that any question concerning this matter was asked him during his examination as a witness. Agnes Hayes also testified as to the act of intercourse in January, 1917, but said that she was induced to and did consent to commit it on account of previous promises by Jordan to marry her, and further said that the child born to her, in October, 1917, was the offspring of this act of intercourse which was the only one they were guilty of. There are, in the record, some circumstances supporting the denial of Jordan that he ever promised to marry Agnes Hayes, and other circumstances that tend to support her evidence that he did promise to marry her. We may, therefore, say that, looking to the evidence alone, there was sufficient to sustain the finding of the jury that the act of intercourse was committed under a promise to marry on the part of Jordan, and unless during the progress of the trial errors, prejudicial to the substantial rights of Jordan, were committed by the trial court, the judgment should be affirmed.

While Agnes Hayes was on the witness stand and being examined by the attorney for the commonwealth, she was asked and answered these questions:

"Q. As I understand it, after this intercourse you became pregnant? A. Yes, sir. Q. And did you have a baby? A. Yes, sir. Q. When was it born? A. The 27th day of October, 1917. Q. Where is that baby? A. My sister has it in the room there. Q. Will you please step in there and get it? A. Yes, sir."

At this point the record shows that:

"The defendant objected to the exhibition of the baby before the jury by the prosecuting witness. The court overruled said objection, to which the defendant excepts."

Following this these questions were asked and answered:

"Q. Is that your baby, born the 27th day of October, 1917? A. Yes, sir. Q. Who is the father of that child? A. Schofield Jordan."

Now, the question is, was it competent for the commonwealth to exhibit before the jury, under the circumstances stated, the child? In considering this question it should be kept in mind that Jordan, at this time, had not been introduced as a witness in his own behalf. Agnes Hayes was the first witness introduced for the commonwealth, and Jordan was standing before the jury upon his plea of "not guilty," which made it incumbent upon the commonwealth to prove the essential facts charged in the indictment, which were: First, the act of seduction or intercourse; and, second, that it was accomplished under and by reason of a promise of marriage on his part. It thus being incumbent upon the commonwealth to prove these two essential elements of the offense, the point at issue narrows down to the inquiry: Was it admissible for the commonwealth, in attempting to establish the facts mentioned, to exhibit before the jury the child, then a little over three months old, that Agnes Hayes said Jordan was the father of? We are clearly of the opinion that the exhibition of the child did not throw any light on the issues in the case, or tend circumstantially or otherwise to corroborate the evidence of Agnes Hayes that she had been seduced by Jordan under a promise of marriage, and so was incompetent. If she was seduced under a promise of marriage, the evidence of the commission of the offense was complete so far as the commonwealth was concerned when Agnes Hayes testified to the promise of marriage and the act of intercourse following and induced by it. It was wholly immaterial, in making out the case, for the commonwealth whether or not she became pregnant or a child was born as the result of the act of seduction complained of. Her pregnancy or the birth of the child did not add anything to or take anything away from the offense charged which grew out of acts and conduct that happened before either of these things came into existence.

Objection was made, as we have seen, to the exhibition, before the jury, of the child, but it does not appear that any exception was saved to the evidence of Agnes Hayes that she became pregnant, or that a child was born to her, but in view of the fact that there will be another trial, the admissibility of this evidence should be determined in order that another trial may be free from error in this respect. This question is a new one in this court, but it has been considered in a number of cases by courts of other states, and there is some conflict in the authorities notwithstanding the fact that in the states from which the opinions, later to be referred to have been taken, the statute requires that the evidence of the prosecuting witness in seduction cases must be corroborated by other facts or circumstances. In other words, in these states a conviction cannot be had on the unsupported evidence of the prosecuting witness. Where corroboration of the prosecuting witness is necessary to sustain the charge that the seduction complained of was committed under a promise of marriage, it can readily be seen that much stronger reasons would exist for the admission of evidence of pregnancy and childbirth than in jurisdictions like ours where no corroboration is necessary and a conviction may be had upon the evidence of the prosecuting witness alone. But, as we have said, even in states where corroboration is required, there is conflict in the authorities as to the admissibility of evidence of this nature, and we have found no authority holding it competent. Cases on this subject are: State v. Carron, 18 Iowa 372, 87 Am.Dec. 401; State v. Brassfield, 81 Mo. 151, 51 Am.Rep. 234; State v. Danforth, 48 Iowa 43, 30 Am.Rep. 387; Clark v. Bradstreet, 80 Me. 454, 15 A. 56, 6 Am.St.Rep. 221; Barnes v. State, 37 Tex. Cr. R. 320, 39 S.W. 684; People v. Kearney, 110 N.Y. 188, 17 N.E. 736. In this last-mentioned case the court said, in commenting on the admissibility of evidence that a child was born in a prosecution for seduction, under promise of...