State v. Fulcher

• Decision Date: 23 October 1918
• Docket Number: 89.
• Parties: STATE v. FULCHER.
• Court: North Carolina Supreme Court

97 S.E. 2

176 N.C. 724

STATE v. FULCHER.

No. 89.

Supreme Court of North Carolina

October 23, 1918

Appeal from Superior Court, Vance County; Daniels, Judge.

Starkie Fulcher was convicted of seduction, and he appeals. No error.

Motion for nonsuit in prosecution for seduction was properly overruled, where there was evidence for the jury as to prosecutrix's previous innocence and chastity, and as to the promise of marriage and the act of seduction.

In prosecution for seduction, whether accused was the guilty party held for the jury.

Defendant was indicted for the seduction of Myrtle West under promise of marriage. She testified that the defendant, in July, 1917 had promised to marry her; that he had visited her frequently since the April before, and was accepted as her lover; and that, in consequence of his promise to marry her, she had yielded to his embraces and had committed the sexual act with him several times. She did so every time he came to see her because he had often professed love for her, and she loved him, and especially because of his promise to marry her. He had not only promised to marry her, but "swore" that he had procured a license for the purpose, and thereby persuaded her to submit to his solicitation.

There was ample evidence of her good character prior to the time she yielded to him, and she testified that "she had never had sexual intercourse with any other man than Starkie Fulcher." The doctor told Mrs. West, her mother, of her pregnancy just before the birth of her child which was in March, 1918. In the summer of 1917, and in September and October of the same year, she told her mother that Fulcher was "talking love to her," and had promised to marry her in October, 1917, but they were not married. The prosecutrix further testified:

"I am 17 years old, and have known the defendant since the last Sunday in March, 1917, when he came to see me with his brother. He began coming to see me right off, and was soon coming one, two, and three times a week, going with me to church and about the neighborhood. He began talking love to me in April, the second or third time he came, and kept this up until September; said he loved me better than any one in the world. I had baby last March. Defendant was the father. It died soon after. The reason I let him have to do with me was he told me he loved me. I thought he loved me, and I loved him. I thought he would do what he said. I never yielded till he told me he had the license to marry me. He said he would marry me, and had got license and given it to Mr. Walters. He appointed second Sunday in October for the marriage, and then Christmas. He told mother he had promised to marry me, and she bought clothes for it."

She was corroborated by her mother and father as to buying the clothes for her, and by her father as to the frequent visits of defendant to her in 1917. Her father testified that other men came to see her, the Curries, Parrish, Abbott, and others, and it also was in evidence that one Will Thompson came to see her, and that her father ordered him from the house, when he found him with her one night. He ran out so hurriedly that he left his cap behind and never came back for it. The night Dr. Gill was there, the defendant was sent for, but did not come to the house. There was other evidence, pro and con, which need not be stated.

Defendant was convicted, and appealed from the judgment.

J. C. Kittrell and Thomas M. Pittman, both of Henderson, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

WALKER, J. (after stating the facts as above).

The defendant's motion to nonsuit was properly overruled, as there was evidence for the jury as to the innocence and virtue of the woman, as to the seduction, and as to the promise inducing it.

1. As to her innocence and virtue: The evidence of her uniformly good character before her fall was properly received, according to our precedents, as some evidence supporting her direct and positive testimony that she committed her first sexual act with the defendant and "had never had sexual intercourse with any other man." Taking all of the evidence into consideration, both positive and circumstantial, as to her virtue and innocence, we hold it to be sufficient. State v. Horton, 100 N.C. 443, 6 S.E. 238, 6 Am. St. Rep. 613; State v. Malonee, 154 N.C. 200, 69 S.E. 786; State v. Pace, 159 N.C. 462, 74 S.E. 1018; State v. Cline, 170 N.C. 751, 87 S.E. 106.

2. As to the sexual act: Her testimony was sustained by the birth of the child, and, as to the identity of her betrayer, by his frequent visits to her home, and especially at the time of the conception, and his general conduct and demeanor towards her, his admission to her mother of their engagement to be married, and his refusal to answer the invitation to her home when he was asked to come. It may be fairly and reasonably inferred that, when a man is with the prosecutrix so frequently as this defendant was, to the exclusion of others, if one phase of the evidence be true, he was the author of her ruin. It is a matter for the jury. They must find the fact whether he was there at the time, and, in order to do so, they may consider all of the circumstances and surroundings, if there is any evidence of a supporting character, as there is in this case. State v. Malonee, supra; State v. Moody, 172 N.C. 967, 90 S.E. 900.

3. As to the seduction by reason of the promise: The defendant admitted the engagement to other witnesses, and his assiduous attentions to the girl at the time when she alleged they committed the act, with other circumstances already related, tended to support her testimony that he had promised to marry her, and she was thereby persuaded, after hesitation, to yield to his wishes. The woman could not easily be supported in any other way, for the man is not apt to admit his own guilt, though there are witnesses of it. State v. Pace, supra; State v. Whitley, 141 N.C. 823, 53 S.E. 820; State v. Kincaid, 142 N.C. 657, 55 S.E. 647; State v. Moody, 172 N.C. 967, 90 S.E. 900. It is said in Underhill on Cr. Evidence, § 388:

"The conduct and relations of the parties after, as well as before, the date of the alleged seduction, may be shown; such evidence being relevant to prove that consent was obtained by promise and inducements, and of what they consisted."

This is cited with approval in State v. Moody, 172 N.C. at page 971, 90 S.E. at page 902, where we also said, quoting from the courts of other states having similar statutes:

"In State v. Curran, 51 Iowa, 112, 118 , the court, referring to this question, held: 'The evidence relied upon as corroborative is that the defendant was the prosecutrix's suitor through a long period of time. Such fact, considered independently, would be entirely consistent with the defendant's innocence. He claims, therefore, that it does not tend to connect him with the offense. In our opinion, the position is not well taken.' In Stevenson v. Belknap, 6 Iowa, 97, 103 , the court said: 'We believe that all authorities concur that seduction is generally made out by a train of circumstances, among which may be enumerated courtship, or continued attention for a length of time.' See, also, State v. Wells, 48 Iowa, 671. Courtship affords not simply the opportunity, but the very means of persuasion, by which seduction is effected. The testimony of the prosecutrix is competent, though not sufficient, evidence that the defendant was her seducer. The fact that he was her suitor, proven otherwise than by

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