State v. Ferguson

• Decision Date: 08 February 1890
• Citation: 12 S.E. 574,107 N.C. 841
• Court: North Carolina Supreme Court
• Parties: State . v. Ferguson.

12 S.E. 574

107 N.C. 841

State .

v.Ferguson.

Supreme Court of North Carolina.

Dee. 28, 1890.

Seduction — Criminal Prosecution — Evidence.

1. On a trial for seduction under promise of marriage, a note in which the prosecutrix makes an assignation with another than the accused may be proved by parol, without accounting for the absence of the note.

2. Under Laws N. C. 1885, c. 248, making it an offense to seduce an "innocent and virtuous" woman under promise of marriage, and providing "that the unsupported testimony of the woman shall not be sufficient to convict, " the additional evidence required must not be confined to the act of sexual intercourse, but must extend to its inducement by a promise of marriage.

This is an indictment for seduction under promise of marriage, tried before Meares, J., at the August term, 1889, of Mecklenburg criminal court. There was a verdict of guilty, and an appeal by the defendant, and it is necessary to an intelligent understanding of the questions presented by his appeal to state at some length the testimony and charge of the judge below. Rosa Hargett, the prosecutrix, testified as follows: "The defendant first came to our house with Jim Trull in May. 1 became engaged to him in July at Bradley's, and I saw him in September and October. Some time during the first days in October he came to our house one night. My father went off to a meeting that night, and my mother went to bed in the other room. He proposed that we should get married next day two weeks. When he proposed that, I said I would have to go in and ask my mother. I went in, waked her up and asked her, and she consented. When I awoke my mother I called her, and we talked in a tone loud enough for defendant to hear us. The door was open. We had sexual intercourse that night after I came back, at his solicitation. * * * It was the first and only time I ever had sexual intercourse with any man. * * * The child was born the 18th of June, 1889. The defendant promised to come see me the next Thursday night week, but he did not come. My father went to town the next day and bought the dry goods to prepare for my marriage." Mrs. Hargett, the mother of the prosecutrix, testified: "On the night spoken of by Rosa, she came in my room and waked me up, and said the defendant had asked her to marry him, and she wanted my consent. After some hesitation, I gave my consent, and Rosa went back in the room where the defendant was. She told me the next day that they were to go to Charlotte next two weeks and get married. When my husband returned I told him what had occurred, and that he must go to town the next day and get dresses, etc., which he did." Dr. Strong, for the state, testified: "I examined Rosa Hargett on the 26th of April, and found her pregnant. She denied it at first, but afterwards acknowledged it, and said defendant had seduced her, under promise of marriage, in October. The time of the birth of the child fell short of the regular time, but was not below minimum limit." J. W. Kirkpatrick, the magistrate, testified that when the warrant was sworn out before him Mr. and Mrs. Hargett said they thought it was the 25th of October when the seduction took place, but Rosa said it was earlier than that. On the preliminary hearing, the defendant admitted that he had intercourse with the prosecutrix, but denied that it was under promise of marriage. This witness and two others testified that the characters of Mr. and Mrs. Hargett and Rosa were good, and the state rested its case. The defendant testified in his own behalf, in substance, that he went to Mr. Hargett's one night to engage a buggy. He (Mr. Hargett) had gone off, and defendant waited for his return. Mrs. Har gett went to bed, and defendant and Rosa were in the next room. He had sexual intercourse with her that night. Did not promise her then, or at any other time, to marry her. After sitting some time, told her (Rosa) to go and ask her mother if he could get the buggy. She returned and said that her mother said he could get it. Did not hear what was said in the other room. Told the magistrate that he had had intercourse with her once, but denied the promise of marriage. Never went to see her but once before the night spoken of. One Garrison, a witness for defendant, testified that in December, 1889, he and the prosecutrix went out among some cedars to have sexual intercourse, " but was scared off by Martin Wolfe, and he did not have intercourse with her." Pressley, James T. Trull, Joe Trull, Columbus Pressley, and M. A. Price, witnesses for defendant, each testified that prior to October, 1888, he had sexual intercourse with the prosecutrix. The defendant's counsel proposed to prove by C. Pressley, (of these witnesses,) that prior to October, 1888, the prosecutrix had written a note to him making an assignation with him. The witness stated "that he did not know where the note was; that he had not seen it since he left Pineville, more than a year ago, and that he had not looked for it. " The solicitor for the state objected to the witness stating the contents of the note. The objection was sustained, and defendant excepted. Martin Wolfe testified corroborating the witness Garrison. Six witnesses for the defendant testified that his character was good, and there was the testimony of a number of witnesses as to the good character of witnesses for defendant. Four witnesses testified that the character of prosecutrix had been bad for 18 months, and another testified that "she was considered a fast girl, but he never heard anything against her chastity." The defendant closed, and the state introduced one Jennings, who testified that the characters of Mr. and Mrs. Hargett and Rosa were good. The father of the prosecutrix was then introduced by the state, and testified that Joe Trull and Jim Trull "had both told him that they never had had intercourse with Rosa, and that defendant was at his house in October, * * * and when he returned that night Mrs. Hargett told him that Rosa and Ferguson would be married in two weeks, and that he must go to town and get dresses, which he did next day." The defendant asked in writing the following instructions: "(1) That the testimony of the prosecutrix must be supported by other testimony, as to the fact that there was a promise of marriage, and that the defendant procured the carnal inter course by reason of promise of marriage; (2) that there is no evidence in this case Supporting the testimony of Rosa Hargett as to the promise of marriage, and the jury must therefore acquit the defendant; (3) that upon all the evidence the jury should acquit the defendant." His honor refused to give these instructions, and defendant excepted. His honor then instructed the jury as follows: "In other criminal cases, a jury may convict the defendant upon the mere naked testimony, unsupported, uncorroborated, of one witness, provided the jury are satisfied beyond a reasonable doubt of the guilt of the defendant by the testimony of the witness. The case at bar, however, forms an exception to this rule. The act of assembly creating this offense provides that the defendant shall not be convicted upon 'the unsupported testimony' of the woman. It follows, therefore, that if the jury in this case should believe the testimony of the prosecutrix to be true, they are prohibited from convicting the defendant, unless there is testimony in the case of a supporting nature. [The crime of seduction under this statute is made up of three ingredients: (1) There must be act of sexual intercourse. (2) This act must be committed under a promise of marriage. (3) The woman must be in the character of an innocent woman, —one who has never had illicit sexual intercourse with a man.] You are instructed, in order to convict the defendant, you must be convinced beyond a reasonable doubt (1) that there was an act of sexual intercourse between the defendant and prosecutrix; (2) that the act was committed under a promise of marriage; (3) that the prosecutrix was an innocent woman, —one who had never had illicit sexual intercourse with a man. The opposing counsel in this case do not agree in construing the statute. Bear in mind that there must be supporting testimony in order to bring the case within the provisions of the statute. The court instructs you that if the prosecutrix is supported by the testimony of other witnesses as to the truth of the existence of either one of the three material allegations made by the state, then such supporting testimony would bring the case within the provisions of the statute. Is there any supporting evidence in this case as to the act of sexual intercourse? Is there any as to the promise to marry? Is there any as to the innocent character of the woman? [Here his honor repeated the testimony.] it is not necessary that there should be supporting testimony as to each and all three of the issues involved, to bring this case within the provisions of the statute. The statute does not go so far as that. If there be supporting testimony going to establish the truth of either one of the three allegations made by the state, and which it devolves upon the state to establish, then the case is brought within the intent of the statute. Whether there be any supporting testimony in the case, and the extent of it, and the weight to be attached to it, are questions entirely within the province of the jury." The jury returned a verdict of guilty, and there was judgment, from which the defendant appealed, and assigned as errors: "(1) In excluding the evidence of the witness Pressley, as to the contents of the note. (2) In refusing to give the charges requested. (3) To that part of his honor's charge defining the offense. (4) To that part of the charge embraced within brackets. "

Jones & Tillett and Bur well & Walker, for appellant.

The Attorney General, for the State.

Davis, J., (after stating the facts as above.) 1. The first exception is to the exclusion of the evidence...