Smith v. State

• Decision Date: 15 June 1915
• Docket Number: 345
• Citation: 69 So. 402,13 Ala.App. 399
• Parties: SMITH v. STATE.
• Court: Alabama Court of Appeals

69 So. 402

13 Ala.App. 399

SMITH v. STATE.

No. 345

Court of Appeals of Alabama

June 15, 1915

Rehearing Denied June 30, 1915

Appeal from City Court of Gadsden; James A. Bilbro, Judge.

Wade Smith was convicted of seduction, and he appeals. Affirmed.

The following are the charges referred to in the opinion, refused to the defendant:

(2) If the jury find from all the evidence in the case that Rena Smith testified as she did to the intercourse in the room of Wade Smith because of her subsequent pregnancy, and not because of the arts, flattery, or persuasion of Wade Smith, then they cannot convict.

(3) If, after considering all the testimony, you find that Wade Smith did not in the manner and at the time testified to by Rena Smith seduce her by means of art, flattery deception, or persuasion, then you cannot convict.

(4) If Rena Smith voluntarily had intercourse with the defendant after she had taken the whisky given her by the defendant, and she had such intercourse because she had taken the whisky, and not because of any arts, flattery, or deception on the part of defendant, then you cannot convict.

(5) It makes no difference whether the defendant gave her whisky or not, if you find from the evidence that the arts flattery, or persuasion of Wade Smith was not the cause of her consent to have intercourse with the defendant.

(6) If you find from the evidence in this case that Rena Smith is accustomed to drinking whisky, and that she had the intercourse testified to by her because of the whisky, which she voluntarily drank, and not because of any arts, flattery or persuasion on the part of the defendant, then you cannot convict.

(7) If Rena Smith was induced by her own sexual passions and by her own love of whisky to have sexual intercourse with the defendant, then you cannot convict.

(8) You may consider the age of Rena Smith and the strength of her mind, and the fact that she knew Wade Smith was a married man, in considering the fact of his having induced her by arts, flattery, or persuasion or deception to have intercourse with him; and if you find from all the evidence that she had the intercourse testified to voluntarily, and not because of arts, flattery, persuasion, or deception of the defendant, then you should acquit him.

(9) If Rena Smith was unconscious at the time of the alleged seduction, then you cannot convict the defendant.

(10) Even though the jury find that defendant was the father of the child of Rena Smith, and that he had intercourse with her the night alleged by her in the home of Wade Smith, and if they find from all the evidence in the case, after considering it, that Rena Smith was not at the time seduced by defendant, they should acquit.

(13) Same as 9.

(15) If you believe from the evidence beyond a reasonable doubt that Rena Smith had sexual intercourse with other men prior to the third week in January, 1914, then you must find the defendant not guilty, although you may believe the defendant had sexual intercourse with her at the time alleged.

Roper &amp Stephens and J.M. Miller, all of Gadsden, for appellant.

W.L. Martin, Atty. Gen., and J.P. Mudd, Asst. Atty. Gen., for the State.

THOMAS J.

The charge was seduction, and the defendant before entering upon the trial made a motion to quash the indictment on the alleged ground that it was found by the grand jury upon the uncorroborated evidence of the female alleged to have been seduced. Code, § 7776; Hart v. State, 117 Ala. 183, 23 So. 43; Allen v. State, 162 Ala. 74, 50 So. 279, 19 Ann.Cas. 867; Holland v. State, 11 Ala.App. 134, 66 So. 126.

The state joined issue upon the motion, and it was incumbent upon defendant to prove its allegations, since, presumptively, the indictment, which had been duly returned by the grand jury, properly indorsed as a true bill and signed by the foreman, was regularly found on legal and sufficient evidence. 22 Cyc. 206; Holland v. State, supra.

The evidence offered by defendant in support of his motion developed without dispute that, not only was the female who was alleged to have been seduced examined before the grand jury who returned the indictment, but that also three other persons were examined before them as witnesses in the case; but the evidence for defendant on the motion does not purport to show all that these three witnesses swore to before the grand jury on that examination, but only a part of what they swore to. Assuming, without deciding, that this part did not amount to such a corroboration of the female alleged to have been seduced as to be sufficient to justify the finding of an indictment, we are not authorized to presume, nor was the lower court authorized to presume, against the validity of the indictment, that the other matters testified to by the said witnesses, and not shown on the trial of the motion, were not sufficient, with the matters so shown to have been testified to by them, to authorize the finding of the indictment. Hence we cannot say that the lower court erred in overruling the motion to quash, as it does not appear that the showing before the lower court as to the absence of corroborating testimony before the grand jury was sufficient or satisfactory (Holland v. State, 11 Ala.App. 134, 66 So. 126), although it be that by reason of section 7776 of the Code the rule as to these matters in seduction cases is some different from the rule in other cases. Holland v. State, supra; Allen v. State, supra; McLeod v. State, 8 Ala.App. 333, 62 So. 991.

In no case, however, can an indictment be stricken down on a presumption of the absence of sufficient evidence before the grand jury; but such absence must be fully and satisfactorily shown, by showing all or substantially all that was testified to before the grand jury, which was, as seen, not done here. 22 Cyc. 206; Holland v. State, supra; Duvall v. State, 63 Ala. 18; Axelrod v. State, 7 Ala.App. 64, 60 So. 959.

Many objections and exceptions were taken on the trial to the rulings of the court on the admission and rejection of evidence and on the refusal of charges; but if we were to undertake to deal with each of such objections and exceptions separately, there being such a multitude of them, it would spin this opinion out to undue length and at the same time serve no good purpose. We shall content ourselves, therefore, with merely reiterating a statement of those settled principles of the law of seduction which are applicable to some of the questions raised on this appeal, as a sufficient answer to many of the contentions of the defendant.

"Seduction" may be defined to be the act of persuading or inducing an unmarried woman who is chaste at the time to depart from the path of virtue, when accomplished by means of either a promise of marriage or by the use of any species of temptation, deception, arts, or flattery, which are calculated to and do have that effect, and which result in her ultimately submitting herself to the sexual embraces of the person accused, whether he be a married or an unmarried man. Code, § 7776. Simply having sexual intercourse with a woman, though she is reluctant to do so, does not, of course, constitute seduction; nor does the having of such intercourse with her by her consent for a consideration paid or promised to be paid amount to such, where she voluntarily and deliberately sells herself, and where her consent thereto is not obtained and her reluctance not overcome by the man as the result of the employment by him of some one or more of the means stated.

" 'Deception' is the act of deceiving; the intentional misleading of another by a falsehood spoken or acted. 'Temptation' is that which tempts to evil; an evil enticement or allurement. 'Flattery' is an effort to influence another by use of false or excessive praise; insincere complimentary language or conduct. 'Art' is the skillful and systematic arrangement or adaptation of means for the attainment of some desired end." Suther v. State, 118 Ala. 97, 24 So. 43.

What temptation, deception, arts, or flattery may be sufficient in one case to overcome the will of the woman and cause her to surrender her virtue may not be sufficient in another case--depending, as it does, upon the relative moral and intellectual strength of the man and the woman, their respective positions in society, the vantage ground of the man, the weakness of the woman, her necessities, and a variety of conditions and circumstances peculiar to each case, which must be judged of by the jury. And therefore when any temptation, deception, arts, or flattery at all are shown, it must be left to the jury to say whether it or they were sufficient, and whether it or they did in fact induce the intercourse, or whether the intercourse was the result of merely a desire on the part of the woman to gratify her sexual passions or deliberately to sell herself for a consideration, uninfluenced and not superinduced by the arts and...