State v. Eddy

• Decision Date: 01 May 1918
• Docket Number: No. 4312.,4312.
• Citation: 167 N.W. 392,40 S.D. 390
• Parties: STATE v. EDDY.
• Court: South Dakota Supreme Court

40 S.D. 390

167 N.W. 392

STATE

v.EDDY.

No. 4312.

Supreme Court of South Dakota.

May 1, 1918.

Appeal from Circuit Court, Hanson County; Frank B. Smith, Judge.

Joe Eddy was convicted of seduction under promise of marriage, and he appeals. Affirmed.Frank Vincent, of Alexandria, and W. J. Ellwood, of Sioux Falls, for appellant.

Clarence C. Caldwell, Atty. Gen., and T. F. Auldridge, Asst. Atty. Gen., for the State.

GATES, J.

The defendant was convicted of the crime of seduction of a widow under promise of marriage.

[1] But two questions are properly presented by the appeal record. It is contended that, inasmuch as the record is silent as to a verbal acceptance by the prosecutrix of the promise of marriage, no mutual promise was disclosed, and therefore no crime was committed. We are unaware of a judicial decision which would, in effect, sanction the changing of the words “under promise of marriage” in section 336, Pen. Code, so as to read “under contract of marriage.” If an acceptance of the promise on the part of the prosecutrix were necessary, it is unthinkable that the submission on her part to the act of sexual intercourse on the strength of the promise did not constitute such acceptance.

[2] It is next contended that a widow cannot be considered to be “an unmarried female of previous chaste character” within the meaning of said section of the Code. Indeed counsel boldly assert that a widow is necessarily both unchaste and a married person in the view of said statute. In support of their contention they cite certain Canadian decisions rendered in civil actions, but chiefly rely upon the decision in Jennings v. Commonwealth, 109 Va. 821, 63 S. E. 1080, 21 L. R. A. (N. S.) 265, 132 Am. St. Rep. 946, 17 Ann. Cas. 64, which squarely supports the logic of their contentions. After speaking of the protection extended by the law to innocent females the Virginia court said:

“But the case is wholly different with women who have been married. They have known man; and, possessed of the knowledge which such intercourse imparts, if chaste, are immune from the seducer's wiles.”

It is our opinion that this statement is entirely too broad. It might properly be the basis of an argument to the jury in the discussion of the question whether the prosecutrix really relied upon the promise, but we think no court should say as a matter of law that a woman who has been married is incapable of being the victim of seduction. After criticising that decision the ...