Sink v. Commonwealth

• Decision Date: 21 March 1929
• Citation: 152 Va. 1002
• Parties: GEORGE SINK v. COMMONWEALTH.
• Court: Virginia Supreme Court

Page 1002

152 Va. 1002

GEORGE SINK v. COMMONWEALTH.

Supreme Court of Virginia, Wytheville.

March 21, 1929.

1. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Statutory Offense — Whether Precise Language of Statute Should be Used. — While it is true it is dangerous to charge a statutory offense in words different from those used in the statute, it is, nevertheless, well settled that it is unnecessary in an indictment under a statute to use the precise language thereof in describing the offense, if the words used are equivalent to those used in the statute.

2. SEDUCTION — Indictment and Information — Previous Chaste Character — Equivalent Words — Case at Bar. — In the instant case, a prosecution for seduction, the indictment as amended charged that the prosecutrix at the time of the alleged seduction was "an unmarried female of previous chaste character." Previous to the amendment the indictment charged that prosecutrix was an unmarried female of chastity and virtue.

Held: That the words used in the indictment before it was amended were equivalent to charging that the prosecutrix was "an unmarried female of previous chaste character," and that the rule that it was not necessary that an indictment for a statutory crime should follow the precise language of the statute governs.

3. SEDUCTION — Indictment — Amendment of Indictment so that it Alleged that Prosecutrix was "an Unmarried Female of Previous Chaste Character" — Case at Bar. — In the instant case, a prosecution for seduction, the indictment charged that the prosecutrix was an unmarried female of chastity and virtue. The trial court permitted the indictment to be amended so as to charge in the words of the statute that the prosecutrix was "an unmarried female of previous chaste character."

Held: That the action of the court in permitting the amendment to the indictment to make it conform in form to the statute was not improper, and was permissible under section 4878 of the Code of 1919.

4. SEDUCTION — Evidence Held Sufficient to Sustain Conviction of Seduction — Case at Bar. — The instant case was a prosecution for seduction. Accused was a married man twenty-six years of age. Prosecutrix was only sixteen years of age. Accused represented himself to prosecutrix and others as an unmarried man. Prosecutrix testified that she fell in love with accused the first time she saw him. Accused wrote her a number of love letters, expressing the warmest love and affection for prosecutrix. Witness testified that accused told them that he and prosecutrix were to be married. The prosecutrix had testified on direct examination that "I loved him and he had promised to marry me — he asked me and I just let him do it. I didn't know he was married." Prosecutrix was asked if she did not do it "just as much for the gratification of your own sexual desire as for anything else," to which she replied that she did.

Held: That this, together with the other evidence in the case, supported a verdict of guilty.

5. SEDUCTION — Reason for Prosecutrix Yielding — Gratification of Passion — Case at Bar. — In the instant case, a prosecution for seduction, the accused contended that if the prosecutrix indulged in the act of intercourse for the gratification of her own passion there could be no seduction. This is not the law. It is true that where the female has not been seduced but voluntarily and solely for the gratification of her sexual desires, submits to the intercourse, there is no seduction. But where the seducer has gained the love of his victim and inflamed her passion, it is not a sufficient answer to say that his victim yielded to gratify her own passion. It must be shown that she yielded solely for this reason.

6. SEDUCTION — Means of Seduction. — It is safe to assert that all cases of seduction are cases where the seducer seeks by means of love making or by other means, to so inflame the passion of the female as to cause her to submit to his desires; and it is clear therefore that the passion aroused in the prosecutrix by the accused will not excuse him where that passion is excited and consent obtained by means of the arts of the seducer.

7. SEDUCTION — Reason for Prosecutrix Yielding — Instructions — Case at Bar. — In the instant case, a prosecution for seduction, the jury were instructed that if they believed from the evidence that the prosecutrix was not seduced by the defendant, but voluntarily, and solely for the gratification of her sexual desire or other reasons, submitted to the connection, then the defendant is not guilty of the crime.

Held: That this instruction properly submitted to the jury the question of whether accused submitted voluntarily and solely for the gratification of her sexual desire, or whether she yielded because of this reason and the seductive arts of the accused, such as persuasion and promises of marriage.

8. APPEAL AND ERROR — Assignment of Error — Refusal of Instructions where it does not Appear that all Instructions were Certified. — In the instant case it did not appear from the bill of exceptions or elsewhere in the record whether all the instructions given by the trial court were certified therein.

Held: That in this state of the record the Supreme Court of Appeals could not consider an assignment of error based on the refusal of the trial court to give certain instructions.

Error to a judgment of the Circuit Court of Montgomery county.

The opinion states the case.

B. G. Garrett and Harvey B. Apperson, for the plaintiff in error.

John R. Saunders, Attorney-General, Leon M. Bazile and Edwin H. Gibson, Assistant Attorneys-General, for the Commonwealth.

CHICHESTER, J., delivered the opinion of the court.

The writ of error awarded in this case brings before this court for review a verdict and judgment of the Circuit Court of Montgomery county in which George Sink, a married man, was, on October 1, 1927, adjudged guilty of seducing one Lucile Preston, and his punishment fixed at seven years in the penitentiary.

There are three assignments of error.

1. That the trial court permitted the attorney for the Commonwealth, upon demurrer to the indictment, to amend the indictment, and refused to sustain the demurrer.

2. That the trial court refused to set aside the verdict of the jury on the ground that it was contrary to the law and the evidence.

3. That the trial court refused to give certain instructions asked for by the defendant.

1. The indictment, omitting the formal parts, reads as follows: "* * * That George Sink did in the county aforesaid on the 17th day of October, 1926, and within one year next preceding this indictment, being then a married man and having a lawful wife then living, unlawfully and feloniously seduce and have illicit connection and carnal knowledge of the body of one Lucile Preston, an unmarried female of previous chaste character through false statements that he, the said George Sink, was unmarried and through false promises of marriage, against the peace and dignity of the Commonwealth of Virginia." (Italics supplied.)

The indictment, previous to the amendment which appears in italics, charged that Lucile Preston was an unmarried female of chastity and virtue. It is contended that the allegations that the prosecutrix was a female of chastity and virtue is not the same in form or substance as that contained in the statute ("an unmarried female of previous chaste character"); that the charge should have been made in the language of the statute and that the indictment was not amendable as the amendment changed the nature of the offense.

While it is true it is dangerous to charge a statutory offense in words different from those used in the statute, it is, nevertheless, well settled that it is unnecessary in an indictment under a statute to use the precise language thereof in describing the offense, if the words used are equivalent to those used in the statute. Whitlock Commonwealth, 89 Va. 337, 15 S.E. 893 (1892); Taylor Commonwealth, 20 Gratt. (61 Va.) 825 (1871); Old Commonwealth, 18 Gratt. (59 Va.) 915, 927, (1867); Christian Commonwealth, 23 Gratt. (64 Va.) 954 (1873).

In Commonwealth Young, 15 Gratt. (56 Va.) 664, 666 (1860), Moncure, J., speaking for the court, said: "The second objection is a more serious one. In an indictment for a statutory offense, it is generally proper and safest to describe the offense in the very terms used by the statute for that purpose. But it is sufficient to use in the indictment such terms of description as that, if true, the accused must of necessity be guilty of the offense described in the statute; and especially so in a case, falling, as this does, in that class, concerning which the law provides that `no exception shall be allowed for any defect or want of form in the presentment, indictment or information, but the court shall give judgment thereon according to the very right of the case.' Code 1849, page 772, chapter 207, section 24, * * *".

In the article on seduction in 19 Ency. Pl. and Pr., page 415, it is said: "* * * So an indictment is good if it substantially follows the language of the statute or alleges in form substantially good all the material facts requisite to constitute the crime of seduction under the statute."

We think the words used in the indictment as it originally appeared are equivalent to charging that the prosecutrix was an unmarried female of previous chaste character. This being true the cases cited and quoted from above are controlling.

The action of the trial court in permitting the amendment to the indictment to make it conform in form to the statute was not improper, and was entirely permissible under section 4878 of the Code.¹

2. We do not think the court erred in refusing to

set aside the verdict of the jury as contrary to the law and the evidence. The motion to set aside the verdict is not based upon any alleged lack of corroboration. The accused rested his defense of "not guilty," first upon his statement that he...