State v. Brassfield

• Decision Date: 31 October 1883
• Citation: 81 Mo. 151
• Parties: THE STATE v. BRASSFIELD, Appellant.
• Court: Missouri Supreme Court

81 Mo. 151

THE STATE

v.BRASSFIELD, Appellant.

Supreme Court of Missouri.

October Term, 1883.

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Appeal from Livingston Circuit Court.--HON. J. M. DAVIS, Judge.

AFFIRMED.

Sheetz, Broaddus & Wait for appellant.

There can be no seduction, unless the promise of marriage was made at the time, or the existing promise then urged as the woman's protection. Wilson v. State, 58 Ga. 328; Espy v. Jones, 1 Ala. 454. There was no corroboration of the prosecuting witness. The court erred in excluding testimony offered to show that the prosecuting witness had had illicit intercourse with others than defendant before the promise of marriage. The chastity of the female was involved, and defendant had the right to show prior acts. People v. Clark, 33 Mich. 112; Wood v. State, 48 Ga. 182; State v. Sutherland, 30 Iowa 570; People v. Jenners, 5 Mich. 327; Templeton v. People, 37 Mich. 501; People v. Schmietzer, 23 Mich. 304; McKern v. Calvert, 59 Mo. 243; 2 Whar. Crim. Law, (7 Ed.) § 2672; Taylor's Ev., 327. The court erred in refusing to allow defendant to contradict the statement of the prosecuting witness that she had never had illicit intercourse with any one but defendant. People v. McArdle, 5 Parker 180; Taylor's Ev., 1164; Rex v. Robin, 2 M. & Rob. 512; Verry v. Watkins, 7 C. & P. 308; Andrews v. Askey, 8 C. & P. 7. The court erred in refusing to permit the prosecuting witness to answer whether she had illicit intercourse with James Stockwell after the alleged seduction. Muller v. St. Louis Hospital, 73 Mo. 243. If the seduction was before the promise of marriage, the defendant was not guilty. R. S. 1879, § 1259. The prosecuting witness must be corroborated as to the seduction as well as to the promise. R. S., § 1912; People v. Hines, 8 N. Y. Legal Observer 139; People v. Lormus, 6 Abb. 139; People v. Benson, 6 Cal. 231; Stardiford v. Gentry, 32 Mo. 477; Roper v. Clay, 18 Mo. 833; Seagh v. Davis, 27 Mo. 603; Bark v. Shin, 4 Bibb 341. The court erred in instructing the jury that they might find the defendant guilty, if the seduction was accomplished any time within three years next before the finding of the indictment, if it was done by reason of the promise of marriage. The law making seduction a crime, was not passed in accordance with constitutional requirements. It was not contained in the Session Acts of 1879, and any citizen has a right to assume that all laws of a general nature were contained therein. It was not promulgated as required by law. It is in violation of article 4, sections 33 and 34 of the constitution of Missouri. It violates section 28 of article 4 of the constitution of Missouri, in that it embraces under one title incongruous matters.

D. H. McIntyre, Attorney General, for the State.

The court properly refused to admit evidence of sexual intercourse with others than the defendant prior to the alleged promise of marriage and seduction. Under the statute only the reputation of the prosecuting witness could be inquired into. R. S., § 1259; Bowers v. State, 29 Ohio St. 542. And reputation cannot be proved by proof of specific acts, but only by showing the general estimate of the community. Hoffman v. Kemerer, 44 Pa. St. 452. In those jurisdictions where it has been held that proof of prior specific acts of sexual intercourse may be given, the statutes differ from section 1259 of the Revised Statutes of Missouri. Kenyon v. People, 26 N. Y. 203; People v. Clark, 33 Mich. 112. Even if the prosecuting witness had been guilty of previous acts of sexual intercourse, if she had reformed and was again striving to live a correct life, she was within the protection of the statute. State v. Timmens, 4 Minn. 325; State v. Carron, 18 Iowa 372. It is well settled that proof of subsequent acts of lewdness cannot be given in evidence, even in a civil suit, to affect the measure of damages. McKern v. Calvert, 59 Mo. 243; Morgan v. Ross, 74 Mo. 318; Boyce v. People, 55 N. Y. 644. It was not necessary that the promise of marriage should either have been made, or formally renewed at the time of the seduction. It is sufficient that the act was accomplished by reason of a subsisting promise to the prosecuting witness by defendant. The prosecuting witness was sufficiently corroborated. It is only required that she be corroborated to the extent required of the principal witness in perjury, (R. S., § 1912); and this may be by circumstances alone. State v. Wakefield, 73 Mo. 549. Courtship and continued attention for a long time, are a sufficient corroboration. State v. Curran, 51 Iowa 112; Armstrong v. People, 70 N. Y. 38. The testimony of the prosecutrix is sufficient to establish the fact of seduction, and is competent, though not sufficient evidence, that defendant is her seducer. State v. Curran, supra, Evidence of opportunities more or less frequent and continued, and that the relations of the parties were such as indicated that confidence in and affection for the accused on the part of the female, which rendered it probable that the act may have been done by him, are sufficient corroboration as to the intercourse, persuasion and inducement. Armstrong v. People, supra; Zabriskie v. State, 43 N. J. L. 648. Time was not of the essence of the offense, and proof of its commission at any time within three years next before the finding of the indictment, was sufficient to sustain a conviction. State v. Curran, 51 Iowa 124. Chapter 24 of Revised Statutes 1879, of which section 1259 is a part, is not objectionable because too many subjects are embraced under one title, and is not in violation of article 4, section 28 of the constitution. The object of this section of the constitution was to prevent the conjoining in the same act of incongruous matters. It was not designed to be unnecessarily restrictive in its operation, nor to embarrass legislation by compelling a needless multiplication of bills. St. Louis v. Tiefel, 42 Mo. 578, State v. Miller, 45 Mo. 495; State ex rel. v. Ransom, 73 Mo. 78; State ex rel. v. Laughlin, 75 Mo. 358, and cases cited. It is sufficient that the title fairly give notice of the subject of the act, so as reasonably to lead to an inquiry into its body. Allegheny Co. Home's Appeel, 77 Pa. St. 77; State Line, etc., Co.'s Appeal, 77 Pa. St. 429; Mauch Chunk v. McGee, 81 Pa. St. 433.

HENRY, J.

At the May term, 1883, of the circuit court of Livingston county, the defendant was indicted for seducing and debauching, under promise of marriage, Mattie Clark, an unmarried female under twenty-one years of age. He was tried and convicted at the September term, 1883, of said court, and has duly prosecuted an appeal from that judgment.

The indictment charges the seduction to have occurred on the 20th day of June, 1882, and Mattie Clark testified that defendant's promise to marry her, was given in March or April, 1882, and that the first time she had illicit intercourse with defendant was about the last of June, 1882. Defendant testified that he never promised to marry Mattie Clark, and that he first had illicit intercourse with her in February, 1882, and the last time in May, 1882, on their return from church in the neighborhood of her father's residence, on the roadside, and that while they were there Adam Brassfield and James Stockwell passed by and saw them.

Stockwell was introduced as a witness, and testified that he saw defendant and Miss Clark have sexual intercourse at that time and place. He was then asked if he saw Adam Brassfield going by at that time. The court sustained an objection to this question, and that ruling is complained of as reversible error. Brassfield was not introduced or offered as a witness to prove either that he saw the parties have sexual intercourse, or that he passed by at that time.

The testimony offered and excluded, could have been offered for no other purpose than to corroborate defendant's testimony to the immaterial fact that Brassfield passed them while they were at the place at which defendant testified the sexual intercourse was had. It certainly was not admissible, as evidence, that Brassfield saw them in the act. It was not error to exclude it. We cannot see how it could have been of any service to defendant if it had been admitted.

Defendant also proposed and offered other witnesses to prove that on the 27th of August, 1882, at the residence of Volney Rolla, in Livingston county, the prosecuting witness, Miss Clark, had carnal connection with James Stockwell. The court sustained an objection to this testimony, as also to offers by defendant to prove that before the alleged promise of defendant to marry Miss Clark, she had had illicit intercourse with other persons.

In a prosecution under section 1259 Revised Statutes, evidence of specific acts of that character is inadmissible. It provides that: “If any person shall, under promise of marriage, seduce and debauch any unmarried female of good repute, under twenty-one years of age, he shall be deemed guilty of a felony,” etc. In Bowers v. State, 29 Ohio St. 542, under a statute similar to ours, only differing from it in the addition of the words “for chastity” after the words “good repute,” it was held that it was not competent to show specific acts of lewdness on the part of the woman, the court observing: “It is the reputation and age of the female and not her previous conduct that bring her within the protection of the statute.” Counsel for defendant cite adjudged cases in Michigan, Iowa, Georgia, and New York in support of their position, but there is a material difference between our statutes and those statutes under which such evidence has been held admissible in other states. In People v. Clark, 33 Mich. 118, the court held that evidence was admissible to show that previous to the alleged intercourse with defendant, the woman had connection with another man; but the decision is based upon their statute, which provides that “if any man shall debauch and seduce any unmarried woman,” etc. In the ...