Spangler v. Commonwealth, Record No. 3414.
| Decision Date | 22 November 1948 |
| Docket Number | Record No. 3414. |
| Citation | 188 Va. 436 |
| Parties | FRED M. SPANGLER v. COMMONWEALTH OF VIRGINIA. |
| Court | Virginia Supreme Court |
1. EVIDENCE — Motion to Strike — Waiver of Motion by Introduction of Evidence. — When a defendant in a civil or criminal case proceeds to introduce evidence in his own behalf, after the trial court has overruled his motion to strike, made at the conclusion of the introduction of plaintiff's evidence in chief, he waives his right to stand upon such motion. Plaintiff's case may be strengthened by defendant's evidence. If thereafter a motion is made to strike the evidence or to set aside the verdict, the Supreme Court of Appeals must consider the entire record in reaching its conclusion.
2. SEDUCTION — Elements of Offense. — To warrant a conviction for seduction under section 4410 of the Code of 1942 (Michie), three essential elements must be established: (1) a promise of marriage, conditional or unconditional; (2) the seduction of an unmarried female; and (3) illicit connection with such female. The previous chaste character of the female is presumed in the absence of evidence to the contrary.
3. SEDUCTION — Promise of Marriage — Evidence Necessary to Establish. — The promise of marriage is one essential element of the crime of seduction, and it not only must be proven but the testimony of the prosecutrix must be corroborated by other evidence which does not emanate from her. The promise of marriage is not an agreement usually made in public, nor is it a contract made with the knowledge of third parties. Such promise is usually established by one of the contracting parties, supported by circumstantial evidence, such as regular visits made by the accused, gifts, their attitude toward each other, visiting places together, and other matters of like nature. But if the promise of marriage does not appear from the testimony of the prosecutrix there is nothing to corroborate.
4. SEDUCTION — Definition. — Seduction is enticing the woman to have sexual intercourse with the accused by means of persuasion, solicitation, promise, bribes or other means without employment of force.
5. SEDUCTION — Evidence Insufficient to Sustain Conviction — Case at Bar. — In the instant case, a prosecution for seduction under promise of marriage, the evidence tending to show that the accused promised to marry the prosecutrix was not sufficient to establish a promise of marriage which would support a civil action for breach thereof. The birth of a child established the fact that there was intercourse, but the different and confusing statements of prosecutrix as to the inducing cause left a decided doubt in the mind as to whether or not it was due to a promise of marriage. The accused contended that the trial court erred, after the introduction of all the evidence, in finding him guilty.
Held: The contention was sound. The evidence tending to prove the promise of marriage and the reliance thereon by the prosecutrix was too vague, indefinite and uncertain to sustain a conviction.
Error to a judgment of the Circuit Court of Botetourt county. Hon. Earl L. Abbott, judge presiding.
The opinion states the case.
Stuart Carter, George B. Dillard and T. W. Messick, for the plaintiff in error.
J. Lindsay Almond, Jr., Attorney General, and Henry T. Wickham, Special Assistant to the Attorney General, for the Commonwealth.
Fred M. Spangler pleaded not guilty to an indictment charging him with seducing a young woman twenty-one years of age. He, "with the consent and concurrence of the Commonwealth's Attorney, and of the court, entered of record," was tried by the court without a jury, found guilty, and sentenced to confinement in the penitentiary for two years.
Spangler assigns two errors: (1) the refusal of the court, on the conclusion of the introduction of the evidence for the Commonwealth, to sustain his motion to strike; and (2) the refusal of the court, after the introduction of all the evidence, to find him not guilty.
When a defendant in a civil or criminal case proceeds to introduce evidence in his own behalf, after the trial court has overruled his motion to strike, made at the conclusion of the introduction of plaintiff's evidence in chief, he waives his right to stand upon such motion. Plaintiff's case may be strengthened by defendant's evidence. If thereafter a motion is made to strike the evidence or to set aside the verdict, the court must consider the entire record in reaching its conclusion. Rawle McIlhenny, 163 Va. 735, 177 S.E. 214, 98 A.L.R. 930; Angell McDaniel, 165 Va. 1, 181 S.E. 370; Anderson Clinchfield Ry. Co., 171 Va. 87, 198 S.E. 478; State v. Zitzelsberger (W. Va.), 39 S.E.(2d) 835; 5 Wigmore on Evidence, Second Edition, sec. 2496; Burks' Pleading & Practice, 3rd Ed., sec. 256.
Therefore, the only question for our consideration is whether considering all the evidence, the guilt of the accused is established beyond a reasonable doubt.
The prosecutrix lived near Clifton Forge and the accused lived in Roanoke. Some time in April or May, 1945, they met informally in Roanoke, where the prosecutrix was taking a business course and the accused was at home on a furlough. They had several "dates" before the accused returned to his post at Fort Knox, Kentucky. The prosecutrix did not complete her business course and returned to her home. While the accused was at Fort Knox and before he was discharged from the army in July, 1945, he wrote the prosecutrix twelve letters which were introduced in evidence. In these letters he used many endearing terms, told her that he loved her, was anxious to see her and she was the "only girl" for him etc. Marriage was not discussed or mentioned. During this period neither the prosecutrix nor the accused considered they were engaged. Each continued to "date" other boys and girls.
From July, 1945, to April, 1946, the accused made several trips from Roanoke to Clifton Forge to see the prosecutrix. From April to the latter part of May, 1946, he visited her once a week, or sometimes once in two weeks. The prosecutrix stated that after April 25, 1946, she did not make dates with other young men.
It is well established that to warrant a conviction under Code section 4410, three essential elements must be established: (1) a promise of marriage, conditional or unconditional; (2) the seduction of an unmarried female; and (3) illicit connection with such female. The previous chaste character of the female is presumed in the absence of evidence to the contrary.
The evidence tending to show that the accused promised to marry the prosecutrix is vague, indefinite and uncertain. The testimony of the prosecutrix on the question of a promise of marriage is as follows:
Neither party seemed to have regarded the letters seriously. The accused testified that he was lonesome in the military barracks, homesick, and wrote to this young lady as he did to several others. The prosecutrix did not regard the accused as her "regular fellow" during this period. She said he did not start coming to see her regularly before April 25, 1946. Her exact language is "we did not go together before that time." After that date, according to her testimony, marriage was mentioned twice, one time he asked her if she would like to be married. She did not remember her reply and did not make any definite answer. This does not establish a promise of marriage, nor can a promise be inferred.
Code, section 4413, provides that no conviction shall be had on the testimony of the female seduced unsupported by other evidence. The promise of marriage is...
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Spangler v. Commonwealth
... ... He, "with the consent and concurrence of the Commonwealth's Attorney, and of the court, entered of record, " was tried by the court without a jury, found guilty, and sentenced to confinement in the penitentiary for two years.Spangler assigns two errors: ... ...