Mackey v. Commonwealth

• Court: Kentucky Court of Appeals
• Writing for the Court: STANLEY, Commissioner.
• Citation: Mackey v. Commonwealth, 255 Ky. 466, 74 S.W. 2d 915 (Ky. Ct. App. 1934)
• Decision Date: 25 September 1934
• Parties: MACKEY v. COMMONWEALTH.

74 S.W.2d 915

255 Ky. 466

MACKEY v. COMMONWEALTH.

Court of Appeals of Kentucky

September 25, 1934

Appeal from Circuit Court, Lewis County.

Howard Mackey was convicted of seduction under promise of marriage and he appeals.

Affirmed.

A. C Jarvis and H. R. Wilhoit, both of Grayson, for appellant.

Bailey P. Wootton, Atty. Gen., and David C. Walls, Asst. Atty. Gen for the Commonwealth.

STANLEY Commissioner.

The appeal is from a conviction of the crime of seduction under promise of marriage, carrying a penalty of one year in prison. The prosecutrix testified explicitly that the defendant had had sexual intercourse with her at a certain time and place, and unequivocally, without any suggestion of affection or love, that she had yielded to him because of his offer and promise to marry her. There was no evidence of any artifice, beguilement, or blandishment exercised by him. He merely proposed that if she would indulge he would marry her. The letter of the testimony, strictly and technically construed, does present, as the appellant maintains, a simple barter. Being such, his counsel submits the proposition that: "Where the prosecutrix yielded to the act of intercourse solely because of defendant's promise to marry her and there was no motivating love on her part and no wiles, artifices or persuasions on the part of the defendant the case is not one of seduction but mere fornication, and when there was no evidence as to any such motivating love, wiles, artifices or persuasions it was the duty of the court to instruct the jury to find the defendant not guilty since it is the duty of the Commonwealth to prove every element of the offense."

Confidence is expressed in this point because of the case of Duggins v. Commonwealth, 217 Ky. 688, 290 S.W. 514. Upon a trial for violating the same statute (section 1214, Ky. St.), the defendant had offered an instruction to the effect that in order to convict him the jury must believe from the evidence three things, one of which was that the agreement on the part of the prosecuting witness was induced solely by the defendant's promise to marry her and but for such promise she would not have submitted. The trial court struck the word "solely" from the instruction and gave it. The appellant maintained that that was error. It is to be conceded that there is some language in the opinion sustaining the appellant's point made here. But the only thing decided in the case was that the court properly struck out the word "solely." The value of an opinion as a precedent lies in the decision of the court rather than in the particular reasoning or language used in arriving at the conclusion. The statute declares that "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. When the opinion relied upon is read with the body of the law construing this statute and consideration is given to the practicalities and the obvious intent and purpose of the law, the contention of appellant loses its force. The word "seduce," in its ordinary, general use, means to lead astray from the path of rectitude or duty and imports some species of artifice, beguilement, deception, or other seductive art. But the refinements of nomenclature for the sake of decency in speech may not be used to raise doubts and distinctions that obscure the real substance of a statute. The term has the specific meaning of inducing a female to surrender her chastity or to lead her from the path of virtue which she was following by such enticements or influences. Without the inducement by a false promise or the abuse of the simplicity and confidence of a virtuous woman by which her submission was obtained, the accomplished act would be purely meretricious and simple fornication or adultery.

In the statute under which the appellant was condemned, an essential element is the enticement or procurement of the consent of a girl under twenty-one years of age by means of or because of a promise to marry her. That unconditional promise must be the inducement or moving cause which prompted the woman to yield her chastity. That is the gist of the statutory offense, the elements of age and chastity being present. Webster's New International Dictionary; 3 Bouv. Law Dict. 3033; 57 C.J. 9; Stowers v. Singer, 113 Ky. 584, 68 S.W. 637, 24 Ky. Law Rep. 395; Commonwealth v. Tobin, 140 Ky. 261, 130 S.W. 1116; Jordan v. Commonwealth, 180 Ky. 379, 202 S.W. 896, 1 A. L. R. 617; Hoskins v. Commonwealth, 188 Ky. 80, 221 S.W. 230; Morehead v. Commonwealth, 194 Ky. 592, 240 S.W. 93; Lakes v. Commonwealth, 199 Ky. 802, 251 S.W. 982; Garrison v. Commonwealth, 243 Ky. 253, 47 S.W.2d 1028; Powell v. Commonwealth, 253 Ky. 68, 68 S.W.2d 754.

As thus measured, the evidence of the prosecutrix brought the case well within the terms and purpose of the statute, and, notwithstanding the defendant's vehement denials that he had ever carnally known her, it was sufficient to take the case to the jury and to sustain the verdict.

It was more than a year after the season of improper acts had closed, through the failure of the accused to visit the prosecuting witness, before an indictment was returned against him. On the day the case was set for trial the parties...