King v. State

• Decision Date: 10 November 1919
• Docket Number: 20943
• Citation: 121 Miss. 230,83 So. 164
• Court: Mississippi Supreme Court
• Parties: KING v. STATE

83 So. 164

121 Miss. 230

KING v. STATE

No. 20943

Supreme Court of Mississippi

November 10, 1919

1 SEDUCTION. Corroboration.

In a prosecution for seduction under promise of marriage under Code 1906, section 1081 (Hemingway's Code, section 808) it is necessary that the testimony of the female seduced be corroborated by other evidence upon the three essential ingredients, of the crime, namely, promise of marriage, the act of sexual intercourse, and the previous chaste character of the prosecutrix.

2 SEDUCTION. Previous chaste character of prosecutrix question for the jury.

In a prosecution for seduction, the question of the previous chaste character of the prosecutrix is a question for the jury.

3 SEDUCTION. Effect of successive acts.

Under Code 1906, section 1081 (Hemingway's Code section 808) there can be only one seduction, each successive act of intercourse not being an offense.

4. SEDUCTION. Promise of marriage. Evidence of previous chaste character.

In order to sustain a conviction for seduction under Code 1906, section 1081 (Hemingway's Code, section 808), under promises of marriage, the jury must believe that there was a promise of marriage made by the defendant to the prosecutrix, and that this caused her to yield her person to him, and they must further believe that at this time the prosecutrix was of previous chaste character.

5. SEDUCTION. Sufficiency of corroboration.

Where in a prosecution for seduction under promises of marriage, the mother of the prosecutrix testified that the accused told her that the prosecutrix "was hard to persuade but he did persuade her over, and also that he said he promised to marry her," this was sufficient to corroborate the prosecutrix upon the promise of marriage and act of intercourse.

6. SEDUCTION. Previous chaste character. Sufficiency of corroboration.

Where the attorney of accused in a prosecution for seduction asked the mother of the prosecutrix on cross-examination whether or not she was a lewd girl previous to the time of the alleged seduction and her mother replied that she was not, this was sufficient corroboration of the testimony of the prosecutrix that she was of previous chaste character.

7. SEDUCTION. Burden of proof on state.

In a prosecution for seduction under promise of marriage the burden of proof is upon the state to establish the three essential ingredients of the crime.

8. SEDUCTION. Previous chastity. Proof of reputation.

In a prosecution for seduction, it is competent for the state to prove the general reputation of the prosecutrix for chastity as one of the elements of proof of actual chastity.

9. SEDUCTION. Evidence of declarations of prosecutrix in travail.

In a prosecution for seduction, it was error to permit the mother of the prosecutrix to testify over objection, that the prosecutrix stated while in travail that accused was the father of the child, where it was not contended that the prosecutrix became pregnant as the result of the first act of intercourse, but that her pregnancy was caused several weeks later though such testimony would be admissible in a bastardy proceeding.

10. CRIMINAL LAW. Granting of instruction during argument.

It was error for the court to grant an instruction for the state during the argument of counsel for the defense to the jury, where he did not know of the granting of such instruction and had no opportunity to refer to the same in his argument.

11. SEDUCTION. Misleading instruction.

In a prosecution for seduction it was error to instruct the jury to convict "if they believed that defendant did have intercourse with the prosecutrix at a time she was of previous chaste character at any time within two years prior to the date named in the indictment as charged in the indictment" such an instruction should have stated that such intercourse was had under promise of marriage, or should have used the word "seduce" to make clear that seduction and not intercourse, was the question.

APPEAL from the circuit court of Covington county, HON. W. H. HUGHES, Judge.

Hulon King was convicted of seduction and appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

E. L. Dent, for appellant.

The statute under which appellant was tried, section 1081, Code 1906, and section 808, Hemingway's Code, says that "the testimony of the female seduced alone shall not be sufficient for conviction." It will be noted that there are three elements of this crime; viz: 1st, that the female under the age of eighteen years was of previous chaste character immediately preceding the offense; 2nd, that the illicit connection or intercourse was brought about by means of persuasion, solicitation, promises, bribes or other means without the employment of force. All three of these elements must be proven by the state beyond a reasonable doubt before a legal conviction can be had, and the testimony of the prosecutrix alone shall not be sufficient to so establish either one of these elements. There is not the slightest evidence in this record to corroborate the prosecutrix that she was of previous chaste character, and no attempt was made by the state to make such proof. Section 1081, Code 1906, sec. 808, Hemingway's Code, seduction of female child under eighteen, and section, 1088, Hemingway's Code 1372, Code 106, seduction of a female over eighteen, are the necessary complements of each other. One punishes the seduction of girls under seventeen by any means, the other, seduction of females over seventeen by means of a promise of marriage. Seduction is the substantive thing punished. See North v. State, 16 So. 264, also concurring opinion in same case, 18 So. 916. Previous chaste character is as essential under one statute as under the other. Likewise is the corroboration of the prosecutrix essential under one statute as under the other. In this case the state relying wholly on a promise of marriage, it is immaterial whether the authorities cited should come under one or the other of these statutes. The degree of proof as to previously chaste character under both statutes is the same, and as there has been more cases tried probably under the latter statute, it follows that the number of cases cited may be more under that statute. In the case of Carter v. State, 54 So. 805, this court held on this very point the following: "The uncorroborated testimony of the woman is insufficient to convict. The allegation of the indictment that she was of previous chaste character, 'and that the carnal knowledge was obtained by virtue of a false or feigned promise of marriage' cannot be maintained on the testimony of the prosecutrix alone. The prosecutrix must be corroborated by evidence upon these two points. Such is the burden, so to speak, placed upon the state in cases of this character." Likewise in the case of Fooshee v. State, 82 Miss. 509, this court holds, that the previous chaste character of the woman is an essential element of the crime, and proof thereof is essential to conviction. In the case of Hatten v. State, 49 So. 514, which is a somewhat similar case to the one at bar, in that case Hatten did not testify in his own behalf, and the testimony of the prosecutrix was unsupported, except by circumstances. The appellant here did not testify, and the testimony of Lillie Cook, the prosecutrix is unsupported, except by circumstances in the way of conversation or statements made by appellant after he was arrested for bastardy and on his trial before Justice of Peace CAMPBELL when he was trying to get his case continued. In this Hatten case, supra, this court said: "The evidence in this case falls far short of making out the crime of seduction as known to the law." No case, we apprehend, can be anywhere found which would sanction a conviction for seduction on the scant and utterly insufficient testimony disclosed by this record." In the case of Ferguson v. State, 15 So. 66, on the competency of the testimony of the prosecutrix, this court held: The third assignment challenges the propriety of the trial court's permitting the female seduced to testify as to acts of sexual intercourse between herself and the prisoner and as to the birth of her child, subsequent to her seduction. There was no controversy as to these facts. The repeated acts of sexual intercourse were testified to by the accused, and the birth of the child was not disputed. The evidence, we think was incompetent, either as connecting the accused with the crime of seduction or as corroborating the evidence of the female seduced."

The statements made by appellant as testified to by prosecutrix her mother, Mrs. Mary Jane Cook, and witness Campbell, that he would marry the prosecutrix, with knowledge of her pregnancy under the circumstances as disclosed by this record, are wholly insufficient to amount to corroboration of the prosecutrix. This identical question was passed upon by this court in the case of Long v. State, 199 Miss 7, 56 So. 185, the court through Chief Justice SMITH, saying: "This evidence was competent, but of itself alone was wholly insufficient to amount to corroboration of the prosecutrix. This evidence goes to substantiate only one of the essential elements of the crime, and that is that the illicit connection was brought about by means of persuasion, promises, etc; it does not in any way prove previous chaste character, neither does it in any way connect appellant with illicit connection with the prosecutrix. Such evidence does not corroborate the prosecutrix as to these two vital and essential elements of the crime. The corroborating evidence required by the statute must be of such character as will fairly tend to connect the appellant with the commission of the offense. In the case of Terry v. State,...