People v. De Fore

• Court: Michigan Supreme Court
• Writing for the Court: CHAMPLIN, J.
• Citation: People v. De Fore, 64 Mich. 693, 31 N.W. 585 (Mich. 1887)
• Decision Date: 03 February 1887
• Parties: PEOPLE v. DE FORE.

31 N.W. 585

64 Mich. 693

PEOPLE v. DE FORE.

Supreme Court of Michigan

February 3, 1887

Error to circuit court, Antrim county.

Indictment for seduction under promise of marriage.

Moses Taggart, Atty. Gen., for the People.

Cruikshank & Grier, for defendant and appellant.

CHAMPLIN J.

Respondent was convicted of the crime of seduction. But one act was charged or claimed to have been committed, and that the prosecutrix swore was under a promise of marriage. No attempt was made to show that she was not a woman of previous chaste character. On her direct and cross-examination she testified to the use of considerable force by respondent before he accomplished his purpose, and said she would not have consented if she could have prevented it. Her testimony given on cross-examination before the justice, signed by her, was produced and identified by her, was introduced, and read to the jury, as follows: "I did not consent to his doing that to me, and would not, only he held me so tight I could not help it. I would not have said anything about this matter, or made Peter any trouble, only I found I was in a family way. If it had not been for that, I would have let him gone where he liked." The counsel for defendant requested the circuit judge, in writing, to charge and instruct the jury as follows:

"First. If the jury find from the evidence that there was any other inducement or motive which induced or led the prosecutrix to submit herself to the defendant, except the promise of marriage, then the jury cannot convict the defendant of seduction.

"Second. To convict the defendant of seduction, the jury must find two facts, viz.: (1) That the prosecutrix consented to the act of copulation with the defendant freely and willingly (2) that she was induced to thus consent by reason of a promise of marriage made by defendant prior to the act of connection.

"Third. If you find from the evidence that she submitted to the act of connection unwillingly, or through force or fear of defendant, the jury cannot convict the defendant of seduction.

"Fourth. If the jury find from the evidence that the prosecutrix submitted herself to the defendant partly because of a promise of marriage, and partly through force or fear of defendant, then the jury cannot convict the defendant of seduction.

"Fifth. The jury must find from the evidence, before they can convict the defendant of seduction, that there was a promise of marriage between the defendant and prosecutrix, made prior to the act of connection, and that said promise was understood and relied upon by her, and that she yielded to the act with defendant because of said promise, and did so freely and with full consent.

"Sixth. If the jury find from the evidence that the prosecutrix would not have submitted herself to have connection with defendant on the sixteenth day of November, 1884, without the force used by defendant, as testified to by her, then the jury cannot convict the defendant of seduction.

"Seventh. If the jury find from the evidence that the act was done against the will and wishes of the prosecutrix, then the jury cannot convict.

"Eight. In order to convict the defendant of seduction, the jury must find from the evidence a promise of marriage made by the defendant to the prosecutrix, and in consideration of such promise she freely and willingly consented to have connection.

"Ninth. If the prosecutrix was compelled by force or fear of defendant, in whole or in part, to submit to the act of connection, then the act would not be seduction, and the jury cannot convict."

Which said requests, and each and every one of them, the said circuit judge declined to grant, and refused to so instruct the jury. To which refusal the defendant, by his counsel, excepted.

And thereupon said circuit judge, on his own motion, charged and instructed the jury as follows:

"Gentlemen of the Jury: This action is brought by the people against the defendant under the provisions of the statute which provides for the punishment of any man who shall seduce or debauch an unmarried woman. In this case the defendant is charged with having seduced and debauched the complaining witness, Nettie Josephack, on the sixteenth day of November, 1884, in the township of Jordan, in this county. The testimony on which the people rest is the testimony of the complaining witness. Her testimony stands before you uncontradicted by any other witness in the case. You therefore have no conflict of testimony to reconcile, except it be conflicting statements of complaining witness. The fact that complaining witness and the defendant had sexual intercourse on that day, in that township, is not disputed; and you may take that fact as established in examining the case. The question for you to determine, then, is, what were the inducements that led to this sexual intercourse? They may be or they may have been, occasioned in three ways: First. It may have been from the mutual desire of the parties, without undue influence of either, to gratify their passions. In that case, if you should find such was the case, then your verdict will be, 'Not guilty.' Second. It may have been by the seductive influences of the defendant. But the complaining witness has testified to no acts in that line except the promise of marriage. Therefore, in order to convict this defendant of the offense here charged, under the testimony before you, you will have to find that the inducement which led to her submitting her person to the carnal intercourse of the defendant was the fact that he, for that reason, promised to marry her. If you find that that was the reason of her submitting to his embrace, then your verdict will be, 'Guilty.' Third. If you should find from the testimony in the case that she gave no consent whatever; that the intercourse was obtained by force and compulsion,--such an obtaining of carnal intercourse with a woman is rape, and it is a higher crime than the one you are brought here to consider. It would be against public policy to allow a prosecuting officer to bring a charge of seduction where the crime was rape, because, if the law allowed him to do so, he might allow parties to escape with a light punishment where state's prison for a long term of years was the punishment that should be meted out for that offense. The crime of rape consists of, or it is defined by Bouvier to be: 'A carnal knowledge of a woman by a man, forcibly and unlawfully, against her will.' Therefore, to find that this man committed a rape on this woman, you will have to find that he committed that 'forcibly and unlawfully, and against her will.' If she consented to the connection, it was not rape. Therefore, gentlemen, I think that you will, in this case, have but two matters to consider. I think you may dispense with any theory that this defendant committed the higher crime of rape under the testimony in the case, and you will be left simply to determine whether it was by the mutual consent of the...