People v. Nelson

• Decision Date: 04 May 1897
• Parties: PEOPLE v. NELSON.
• Court: New York Court of Appeals Court of Appeals

153 N.Y. 90

46 N.E. 1040

PEOPLE

v.NELSON.

Court of Appeals of New York.

May 4, 1897.

George Nelson appeals from a judgment of the general term affirming a judgment of quarter sessions convicting him of seduction, entered on the verdict of a jury. Reversed.

On the 27th of September, 1893, the defendant was indicted ‘for that the said George Nelson, on or about the 7th day of December, 1892, and on divers other times before and after that date, * * * under promise of marriage, did feloniously, wrongfully, and willfully seduce and have sexual intercourse with one Fannie A. Moore, * * * then and there being an unmarried female of previous chaste character.’ In June, 1895, he was tried, convicted, and sentenced to state's prison for the term of three years. He appealed to the general term of the supreme court, which affirmed the judgment, and he now appeals to this court. Further facts appear in the opinion.

O'Brien, J., dissenting.

Thornton A. Niven, for appellant.

George McLaughlin, for respondent.

VANN, J.

In March, 1891, when the defendant was 20 years of age and the prosecutrix was 15, he asked her to marry him, and she said that she would if her parents would consent. On the 2d of August following, he proposed sexual intercourse, which she at first refused, but upon his promise to marry her ‘if anything happened,’ as soon as she discovered that she was pregnant, she finally consented. From that time until March, 1893, he had connection with her every two or three months, and on each occasion, according to her statement, before the act, he promised to marry her ‘if he got her into trouble.’ On the 11th of February, 1892, the day that she became 16 years old, there was a mutual promise to marry, without any condition. After this, however, the same as before, each act of sexual intercourse was preceded by a promise exacted by her that he would marry her if she became pregnant. The first tiem that he had to do with her after she was 16 was on the 4th of July, 1892. As the indictment was not presented until September, 1893, or more than two years after the first act of sexual intercourse, the defendant insisted upon the trial, and insists upon this appeal, that his conviction was barred by the limitation prescribed by section 285 of the Penal Code. He further claims, and the point was distinctly made at the trial, that, if any subsequent act is relied upon to convict, it does not satisfy the statute, because at that time the prosecutrix had ceased to be chaste. The position of the people upon the subject is that all intercourse with the prosecutrix before she became 16 is conclusively presumed to have been without her consent, because, by the statute then in force, the ‘age of consent’ was 16 years, and, accordingly,they seek to avoid the bar of the statute by basing the conviction on the first act of intercourse that occurred after she became of that age.

Seduction under promise of marriage was not a crime at common law, but was made such by chapter 111 of the Laws of 1848. This statute was substantially re-enacted in the Penal Code, which provides that ‘a person who, under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character, is punishable by imprisonment for not more than five years, or by a fine of not more than one thousand dollars, or by both.’ Pen. Code, § 284. By the next section it is provided that ‘the subsequent intermarriage of the parties, or the lapse of two years after the commission of the offense before the finding of an indictment, is a bar to a prosecution for a violation of the last section.’ Id. § 285. No age of consent is mentioned in any of the sections relating to the subject of seduction, but the statute which defines the crime of rape provided, at the time the offense in question is alleged to have been committed, that ‘a person who perpetrates an act of sexual intercourse with a female not his wife, under the age of sixteen years, under circumstances not amounting to rape in the first degree, is guilty of rape in the second degree, and punishable with imprisonment for not more than ten years.’ Laws 1892, c. 325, amending section 278 of the Penal Code. In 1895 the section was further amended so as to increase the limit of age, as applied to rape, to the period of 18 years, although under the Revised Statutes it was but 10 years. Laws 1895, c. 460; 2 Rev. St. (4th Ed.) p. 849, § 22. The only other statute relating to the subject of age, as applied to the relations of the sexes, is the Code of Civil Procedure, which provides that an action may be maintained by a woman to annul her marriage when she had not attained the age of 16 at the time of the marriage, and it took place without the consent of the one having legal charge of her person, was not followed by consummation or cohabitation, and was not ratified after she attained the age of 16 years. Code Civ. Proc. § 1742. None of these limitations upon the power to consent have been expressly applied by statute to the crime of seduction, and we have no power to extend them by implication to an offense that is purely statutory. Penal statutes must be strictly construed, and cannot be extended to cases that are not clearly covered thereby. An essential element in the crime of seduction is the consent of the female, founded upon a contract to marry, and plain language on the part of the legislature would be necessary to permit us to hold that the prosecutrix, although old enough to make that contract, was not old enough to consent to the defendant's advances. People v. Alger, 1 Parker, 333; Crozier v. People, Id. 453, 456. This is especially true since, by another section of the same statute, an act of sexual intercourse with a female under 16, whether chaste or not, even with her consent and without any promise of marriage, was made a crime of a graver nature. As protection was thus afforded to girls under the prescribed age by the severe punishment imposed for rape, it is not probable that the legislature intended to import the age limit into the section relating to the milder offense of seduction, because there was no necessity for it, and nothing to indicate any intention to do so. If the people had seen fit to prosecute the defendant for rape committed upon the prosecutrix prior to February, 1892, neither the presence nor the absence of consent would have been material, except as to the degree merely; and the statute of limitations would have been five years instead of two. Cr, Code, § 142. As they did not do so, but proceeded against him for another crime, quite distinct in theory and nature, they must be limited to that crime, and cannot be allowed to add an element from another offense, in order to avoid the statute of limitations. It follows, therefore, that, according to the testimony of the prosecutrix, her seduction was accomplished on the 2d of August, 1891, or more than two years...