People v. Clark

• Decision Date: 05 January 1876
• Citation: 33 Mich. 112
• Court: Michigan Supreme Court
• Parties: The People v. Walter Clark

33 Mich. 112

The People v. Walter Clark

Supreme Court of Michigan

January 5, 1876

Heard October 7, 1875

Exceptions from Calhoun Circuit.

Conviction set aside and a new trial granted.

Andrew J. Smith, Attorney General, for the People.

John C Fitzgerald and C. I. Walker, for respondent.

OPINION

Marston, J

The defendant was convicted for the seduction of Alice J. Morey. There were three counts in the information: the first charged him with committing the offense on the 28th of July, 1873, in the county of Calhoun; the second, with the commission of a like offense on the same day in the township of Penfield, in said county; and the third, with a like offense, under and by means of a promise of marriage, on the same day, in the county of Calhoun.

Upon the trial the prosecution introduced the complaining witness, who gave evidence tending to prove an act of seduction, in the town of Penfield, July 28th, 1873. The prosecution then offered to prove a distinct and subsequent act of seduction, stating for the first time, that they relied upon this instance, and not the one already proven, for conviction. This was objected to but admitted, the court remarking that the prosecution would have to elect one particular act or transaction to put before the jury. The prosecution then offered to prove a third distinct act, which occurred subsequent to the first act proven to have taken place in the town of Penfield, but prior to the second act already proven. This was also objected to, but admitted.

After the close of the argument, but before the court charged the jury, the prosecuting attorney stated to the court, in the hearing of the jury, that he relied upon the last act of intercourse, which was the second proved, and that if the court desired him to elect, he would elect that act; no election, however, was made; and the court charged the jury that it was sufficient if the prosecution had proved the offense committed at any time within a year prior to the 24th of June, 1874, that being the time when the prosecution was commenced; and refused to charge, that the prosecution having first put in evidence tending to show that the defendant committed the offense in Penfield, on the 28th of July, they were not at liberty to prove any subsequent offense committed elsewhere, for any purpose; and that the jury could not consider the evidence of such subsequent offense for any purpose whatever.

It was decided in People v. Jenness, 5 Mich. 305, that the prosecution, before the evidence was introduced, could select any one act of criminal intercourse, such as was charged in the information, which occurred within the jurisdiction of the court and within the period of the statute of limitations, but when evidence had been introduced tending directly to the proof of one act, for the purpose of procuring a conviction upon it, the prosecutor had thereby made his election and could not be allowed to prove any other act of the kind as a substantive offense upon which a conviction might be had in the cause.

Upon this question we consider the ruling in that case decisive. The act alleged to have been committed in the buggy, in the town of Penfield, being the first to which evidence was introduced, was the only offense upon which the defendant could be tried; and if proof of subsequent acts were admissible at all, they could not be admitted as distinct offenses to go to the jury and upon which the defendant might be convicted. It was not necessary for the prosecution to expressly elect for which act they would try the defendant in order to bind them. The fact of their introducing evidence tending to prove a distinct substantive offense was a sufficient election. In this case under the charge as given, there was no certainty whatever that the jurors all united upon the same act in finding the defendant guilty.

Nor could the prosecution after having thus introduced evidence tending to show an offense committed in the town of Penfield, on the 28th of July, show subsequent acts as corroborating testimony, as they would have no such tendency. Proof of previous acts of sexual intercourse would tend to show a much greater probability of the commission of a similar act charged to have occurred subsequent thereto, but the converse of this proposition would not be true, as the proof of a crime committed by parties on a certain day could have no tendency to prove that they had, previous thereto, committed a similar offense.--People v. Jenness, supra; Templeton v. The People, 27 Mich. 501; The People v. Schweitzer, 23 Mich. 301.

There is still another serious objection to the prosecution relying upon the second or third act proven in this case for a conviction. It appeared from the testimony of the complaining witness that the first offense was committed, if at all, on the 28th of July, 1873; that the second and third offenses were committed, if at all, during the month of August following, but at what particular time she was unable to state. And upon cross-examination she gave testimony tending to prove several distinct acts of intercourse, in all instances connected with a promise of marriage, in the months of July and August, and all subsequent to the 28th of July.

Illicit intercourse alone would not constitute the offense charged. In addition to this the complainant, relying upon some sufficient promise or inducement, and without which she would not have yielded, must have been drawn aside from the path of virtue she was honestly pursuing at the time the offense charged was committed. Now, from her own testimony it would seem that the parties had illicit intercourse as opportunity offered. "Such is the force and ungovernable nature of this passion, and so likely is its indulgence to be continued between the same parties, when once yielded to, that the constitution of the human mind must be entirely changed before any man's judgment can resist the conclusion" that where parties thus indulge their criminal desires it shows a willingness upon her part that a person of chaste character would not be guilty of, and that although a promise of marriage may have been made at each time as an inducement, it would be but a mere matter of form, and could not alone safely be relied upon to establish the fact that she would not have yielded had such a promise not been made.

We do not wish to be understood as saying that, even as between the same parties, there could not be a second or even third act of seduction; but where the subsequent alleged acts follow the first so closely, they destroy the presumption of chastity which would otherwise prevail, and there should be clear and satisfactory proof that the complainant had in truth and fact reformed, otherwise there could be no seduction. The object of this statute was not to punish illicit cohabitation. Its object was to punish the ...