Norton v. State

• Decision Date: 12 November 1894
• Court: Mississippi Supreme Court
• Parties: ALBERT B. NORTON v. THE STATE

16 So. 264

72 Miss. 128

ALBERT B. NORTON v. THE STATE

Supreme Court of Mississippi

November 12, 1894

FROM the circuit court of Copiah county. HON. J. B. CHRISMAN Judge.

Appeal from a conviction of seduction. The case is stated in the opinion. Section 1998, code 1892, upon which the prosecution is based, is as follows: "Seduction of females over age of sixteen, by frauds, etc.--If any person shall obtain carnal knowledge of any woman or female child over the age of sixteen years, by virtue of any feigned or pretended marriage, or any false or feigned promise of marriage, he shall, upon conviction, be imprisoned in the penitentiary not more than five years; but the testimony of the female seduced alone shall not be sufficient to warrant a conviction."

There was some testimony for the accused to the effect that the prosecutrix, Katie Douglass, was engaged to marry another man, and had sexual intercourse with him about the time accused began his visits to her. The court granted the following instruction for the state: "It is no defense to the indictment that Miss Katie Douglass was engaged to another man, or had illicit connection with another man. If you believe from the evidence that the defendant obtained illicit connection with her by a false or feigned promise of marriage, he is guilty as charged."

Judgment reversed and cause remanded.

Geo. S Dodds and Willing & Ramsey, for appellant.

1. The indictment does not allege that the promise was made to Katie Douglass. The motion to quash should have been treated as a demurrer, and the indictment quashed.

2. The instruction for the state, to the effect that the previous chaste character of the woman was immaterial, and that her unchastity was no defense, is in direct conflict with the law announced in Ferguson v. State, 71 Miss. 805.

Frank Johnston, attorney-general, for the state.

The indictment is in the words of the statute, and the objection that it does not allege that the promise of marriage was made to Katie Douglass is captious. It informs accused of the nature of the crime charged. 1 Bish. Crim. Pro., §§ 511, 526; Bish. Stat. Cr., § 645. Any other construction than that the promise was made to her is strained and unreasonable. 1 Bish. Crim. Pro., § 356.

The instruction for the state was proper. It followed the rule laid down in Ferguson v. State, 71 Miss. 805. The proposition that previous unchastity is not a defense to an indictment for seduction under our statute follows logically from the decision that such previous chastity need not be averred in the indictment, and was expressly announced in the two concurring opinions.

Argued orally by Geo. S. Dodds, for appellant, and Frank Johnston attorney-general, for the state.

OPINION

WHITFIELD, J. COOPER, C. J.

We cannot treat the motion to quash as a demurrer. The language of §§ 1354, 1355, code 1892, is plain, and binds us. If a demurrer had been interposed below, it should have been sustained, and the indictment quashed, unless amended; for the averment, which ought to be clearly set forth in every indictment under § 1298, code 1892--that the defendant made the promise to the woman of whom he had the carnal knowledge--whilst set forth here in such wise as to prevent objection after verdict, is not set forth with such clearness as to sustain the indictment, against objection properly taken before verdict by demurrer. But, whilst we cannot treat the motion to quash as a demurrer, yet if the indictment omits altogether any averment that the defendant made the promise to the woman of whom he had carnal knowledge, which averment we hold to be essential in such an indictment, there would be a total omission of a matter of substance--of an element of the very essence of the offense--and the indictment would be void as charging no offense, and the judgment and sentence of the law could not follow upon a conviction had under it; and, a matter of constitutional right being thus involved, the point could be raised here, and § 1341, code 1892, would not apply, as held in Lewis v. State, 49 Miss. 354, and Newcomb v. State, 37 Miss. 383. The whole pith of the matter is put by Chief Justice Shaw (23 Pick. 275) in this language, approved by this court in Sullivan v. State, 67 Miss. 346, 7 So. 275: "The verdict of a jury does nothing more than verify the facts charged; and, if these do not show the party guilty, he cannot be considered as having violated the statute." There can be no doubt that it is of the essence of the offense denounced by § 1298, code 1892, that the defendant should make a false or feigned promise of marriage to the woman in the case, and that the indictment should aver this. 4 Parker's Crim. Rep., p. 528. In Bishop's Directions & Forms, § 950, the proper form of indictment under this statute is specifically set forth, the language being "that A did obtain carnal knowledge of one X, . . by virtue of a false express promise of marriage to her previously made by the said A."

In Callahan v. State, 63 Ind. 198; Cheaney v. State, 36 Ark. 74; Grant v. State, 4 Parker's Crim. Rep. 528 (which see specially); Cole v. State, 40 Tex. 147; Bryan v. State, 34 Kan. 63, 8 P. 260, and many others, it is expressly averred that the carnal knowledge was obtained by virtue of a promise made by the defendant to the woman in the case. The indictment in Ferguson v. State, 71 Miss. 805, 15 So. 66, follows Mr. Bishop's form exactly, and this book is presumably in the library of every district attorney in the state. The allegation in this indictment does not use the language "promise previously made by said defendant to said Katie Douglass," but it does allege that defendant had carnal knowledge of her "by virtue of a false or feigned promise of marriage." We think this is a very defective allegation in the particular under consideration; but still there is, by necessary implication, the allegation that the promise was one made by defendant to Katie Douglass. No other construction not too fanciful to serve as the basis of a judgment of reversal, can be made. "When the description of the offense, taking into consideration its nature, and the natural and legal import of the terms used in designating it, is such as to convey a certain, clear and full idea of the offense charged, it is sufficient," says this court in Jesse v. State, 28 Miss. 100. There can be no sound and satisfactory meaning given to this allegation, looking to the whole indictment, other than that the promise in question was one made by the defendant to Katie Douglass, defective as the allegation manifestly is. In Bryan v. State, 34 Kan. 63, 8 P. 260, the indictment did not, in terms, charge that the woman seduced was a single woman, but it did charge that she was of the age of only seventeen years. The court said: "The allegation that Bryan, being a male person, seduced her under a promise of marriage, inferentially charged that the female was a single woman. It would conform to the better practice if the information contained an express averment that the prosecutrix was at the time a single woman; but as the language used necessarily implies that she was single at the time stated, and as appellant could not have been misled or prejudiced by anything in the information, we think it was not fatal for omitting the direct averment that the prosecutrix was a single woman,"

We hold in this case that the allegation is very defectively made, but is set out by reasonable implication in such sense and with such sufficiency that, after verdict, it is aided by § 1341, code 1892. See note one to 1 Saunders Reports 227.

But it is insisted that the court below erred in granting the instruction given for the state. We think this instruction, applied to the facts of this case, squarely presents the question whether the woman should be of previous chaste character under this statute. We have found, after careful examination, but two statutes identical with ours, and those are the statutes of Arkansas and Texas; and, in the case of Polk v. State, 40 Ark. 482, a case strikingly like this in its facts, speaking of testimony offered by defendant to show previous unchaste character, which had been excluded by the court below, the court says: "In every prosecution for seduction, the character of the seduced female is involved in the issue. . . It is not, indeed, expressed in our statute, as it is in the statute of New York and of some of the other states, that the woman should have been of previous chaste character, but it is plainly implied. The legislature never intended to send a man to the penitentiary for having had illicit connection with a prostitute or a woman of easy virtue, where she had consented, even under a promise of marriage." And the supreme court of Michigan, construing a statute identical with ours in leaving out the words "of previous chaste character," and in a prosecution for "seducing and debauching an unmarried woman," says: "In most of the states these statutes make the seduction of a woman of previous chaste character indictable, while there are no such words, nor any of like import, in ours. If, however, we are correct in what we have already said upon the question as to what is necessary to make an act of illicit intercourse seduction, then the chastity of the female, at the time of the alleged act, is in all cases involved. This, upon principle, we consider the correct doctrine," citing many authorities.

In an elaborate note in 87 Am. Dec. 408, it is declared that "the evident design of the laws on this subject is to protect virtuous unmarried females." The Texas statute practically identical with ours, also omits the words "of previous chaste character." But the supreme court of that state, in two well-considered cases, reported in 25 Am....