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...
