O'Neill v. State

• Decision Date: 07 May 1890
• Parties: O'NEILL v. STATE.
• Court: Georgia Supreme Court

11 S.E. 856

85 Ga. 383

O'NEILL v. STATE.

Supreme Court of Georgia

May 7, 1890

Syllabus by the Court.

1. In a statute declaring it penal to seduce "a virtuous unmarried female," the meaning of the word "virtuous" is for determination by the court, not by the jury. Every virgin is virtuous; and, as a general proposition, a woman who, out of wedlock, and with her own consent, has parted with her virginity, is not virtuous.

2. Whether a particular woman had parted with her virginity before the alleged seduction took place is a question for the jury. The affirmative may be established by evidence, direct or circumstantial, and conduct tending to show a debauched mind, the loss of moral chastity, may be considered.

3. The want of moral chastity may also be regarded on the question whether the woman, though a virgin, was really seduced, or whether she shared the intercourse for the gratification of lascivious propensities not inflamed by the arts or importunity of the accused.

4. In trying a charge of seduction the jury may apply their knowledge of human nature and of the customs of society to interpret conduct, refer it to its sources, and follow it to its consequences. They may use such knowledge, not to determine what a virtuous woman is, but upon the question whether a particular woman was or was not virtuous (according to the legal standard) at a given time.

5. Intercourse brought about by promise of marriage only, with no aid from persuasion, or other false and fraudulent means will not constitute the offense of seduction, the statutory words being, "if any person shall by persuasion and promise of marriage, or other false and fraudulent means seduce a virtuous unmarried female," etc.

Error from superior court, Cherokee county; GOBER, Judge.

J. J Northcutt, H. W. Newman, C. D. Phillips, and Clay & Blair, for plaintiff in error.

Geo.

R. Brown, Sol. Gen., and Harrison & Peeples, for the State.

BLECKLEY C.J.

This case was tried before Judge WINN, since deceased, and the motion for a new trial was heard and denied by his successor, Judge GOBER.

1. The trial judge charged the jury: "Under the decisions of our supreme court, I leave it to you to say what a virtuous woman is. I charge you that a woman who has had unlawful sexual intercourse with a man is not a virtuous woman. As to allowing a man to kiss her and take liberties with her, as to her being a virtuous woman, I leave that to you. You can consider that as honest men, taking what you know about human nature and society people, and what they do and what they do not know. A thing that would be allowed in society in one place would not be allowed in another place. I leave that to you." The motion for a new trial complains of this part of the charge as erroneous, but fails to specify in what the error or errors consist. The opinion of Judge McCAY, as expressed in Wood v. State, 48 Ga. 289, was that the question of what is a virtuous woman ought to be left in each case to the jury; but the other two members of the court presiding in that case were of a different opinion. The charge to the jury then under review was in these terms: "The presumption of law is that the female alleged to have been seduced was virtuous, and that presumption remains until removed by proof. She must have had personal chastity. If she, at the time of the alleged seduction, had never had unlawful sexual intercourse with man, if no man had then carnally known her, she was a virtuous female within the meaning of the law. If man had then carnally known her, had sexual intercourse with her, she is not a virtuous female within the meaning of the law." This charge, in its totality, was expressly approved by Judge TRIPPE and Chief Justice WARNER. See pages 299, 304. These two judges being a majority of the court, their concurrence made the judgment of the court on the question involved, and, nothing to the contrary having been decided, his honor, Judge WINN, was mistaken in leaving it to the jury to say what a virtuous woman is. In so doing, he was conforming to the individual opinion of one member, but going directly counter to the decision of the court; a decision in which all the members of the court, as now constituted, fully concur. We think that in contemplation of law, including the penal statute on the subject of seduction, every virgin, without exception, is virtuous. This is a plain, practical standard by which to test the chastity to which the law looks in classifying females who have never been married, and who have not been deprived of their virginity by violence or force without their consent. Of course, a different standard would have to be adopted in classifying women who have been married, such as widows and divorced wives. Possibly, also, a fallen woman who has reformed and been redeemed, and who has proved her redemption by years of abstinence and repentance, might stand on the footing, if not of a virgin, of a chaste widow. But for the purpose now in hand, we need not enter upon the consideration of exceptional cases. The broad general rule is enough, that unmarried females who are virgins are virtuous, and those who, by their own consent, have ceased to be virgins are not virtuous. This is the rule which should have been given in charge to the jury in the present case. It is for the court to construe the word "virtuous" as used by the statute, and the jury should receive and abide by that construction as decisive.

2. But while the jury have no right or power to decide that a virgin is not a virtuous woman, it is their province, and theirs alone, to decide, from the evidence, whether the female alleged to have been seduced was a virgin at the time she yielded her person to the accused. And upon this question all facts and circumstances tending to show a debauched mind such as lewd conduct and behavior before that time, may be considered; for the jury need not have direct or positive evidence of her previous connection with some other person, but only such evidence as satisfies them that she has parted with her virginity. Of this opinion were all the judges who presided in Wood v. State, supra. Judge TRIPPE (page 299) said: "The proof of lascivious indulgences and wanton dalliances, with other evidence short of direct proof of the overt act, may authorize a jury to infer actual guilt, the illicit...