State v. Holter
| Decision Date | 03 June 1913 |
| Citation | 142 N.W. 657,32 S.D. 43 |
| Parties | STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. CARL HOLTER, Defendant and appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Charles Mix County, SD
On rehearing; former opinion modified
Charles P. Bates, Charles H. Bartelt, Perrett F. Gault
Attorneys for Appellant.
Royal C. Johnson, Attorney General
M. Harry O'Brien, Assistant Attorney General
Ambrose B. Beck, State's Attorney
French & Orvis, J. E. Tipton, G. M. Caster
Attorneys for Respondent.
Opinion filed June 3, 1913
This case is before the court on rehearing. The former opinion is reported in 30 S.D. 353, 138 N.W. 953, where a statement of facts will be found. In his petition for a rehearing, the appellant contends that a number of his assignments that were argued in his brief were either passed over and not considered by the court, or were not given the consideration to which they were entitled. These assignments are errors that are alleged to have been committed by the court, both in its instructions to the jury and in refusing to admit certain testimony offered on behalf of the defendant at the trial. On a re-examination of the record, the court is of the opinion that the appellant is right in his contention, and we shall give our attention to a review of the alleged errors.
The first matter complained of by the appellant is an instruction by the court, which is as follows:
"With reference to this provision of the law in regard to previous chaste character, the court charges that the law presumes a woman to be of chaste character until the contrary is shown; but, if there is a reasonable doubt, as I will hereinafter define it, of her chastity, under all of the evidence, he would be entitled to the benefit of that doubt."
The question presented by this assignment is one relating to the material rights of the defendant. The question of law laid down by the court by the instruction, to wit, "The law presumes a woman to be of chaste character until the contrary is shown," assumes the existence of one of the material elements of the offense and dispenses with any proof thereof on the part of the prosecution. But it even goes further than that, for, by using the words, "but if there is a reasonable doubt, as I shall hereinafter define it, of her chastity, under all of the evidence, he would be entitled to the benefit of that doubt," the court, by implication at least, cast upon the defendant the burden of proving the negative of one of the material allegations in the information, or, to that extent it required him to prove his innocence; for, if the prosecutrix is to be presumed to be of chaste character until the contrary is shown, then that is an existing fact, and is free from any doubt whatever. The prosecution is not required to furnish any proof of that allegation, and therefore any doubt to be raised thereon must be the result of proof furnished by the defendant. This, of course, would be an invasion of defendant's constitutional rights; and, after a careful consideration of the question, we are of the opinion that the court erred in this instruction to the jury, and that the defendant's rights were prejudiced thereby.
We are not unmindful of the presumption of the chastity of every woman until the contrary is shown, and that it ought to be recognized wherever it can legally be done. In fact this presumption of chastity and virtue of womanhood is the very foundation of our social fabric. Chastity is the rule, and we believe that we might say it is the fact in the case of every woman until her chastity has been lost or debauched by the false promises, cajolery, or other deceitful wiles practiced upon her by some member of the opposite sex. But, conceding all this to be true, this presumption of chastity has no place, and cannot be indulged in a prosecution for seduction under our statute. The offense is purely statutory, and as defined by the statute it consists of four concurrent, essential elements, the existence of each of which is necessary to constitute the crime. These elements are: First, under promise of marriage; second, to have illicit connection; third, with an unmarried female; fourth, of previous chaste character. So far as the statute is concerned, these elements are all of equal importance; each is an allegation of an independent fact, and it is necessary that each be alleged in the indictment or information. To warrant a conviction, the jury must be satisfied, and that beyond a reasonable doubt, of the truth of each. Evidence may be at hand to prove, to an absolute certainty, the existence of either three of the elements of the offense, but, without the existence of the other no conviction can be had or sustained. This being the case, how can it be said that proof of either of these allegations can be dispensed with; or, if proof of one could be dispensed with, why not of another, or two for that matter? If a court could hold that a woman is to be presumed to be chaste until the contrary is shown, and thereby dispense with proof of her chastity, why could he not also presume that a chaste female would not submit to illicit intercourse except under promise of marriage, and thereby dispense with the necessity of proving the promise to marry? or he might hold that a promise to marry, being a mutual agreement, implies that the parties are capable of entering into a valid marriage; and therefore the female would be presumed to be unmarried, and thus dispense with evidence to prove that she is unmarried. of course any of these propositions would be absurd, but one is not more absurd than the other, for the indulgence of any of these presumptions would overcome the defendant's presumption of innocence until his guilt be shown, and relieve the state of the burden of establishing his guilt by evidence on the trial, as is required by law.
There is a conflict of authority in the decisions of the various states upon the question involved in this instruction, but an examination of the cases and the statutes under which they were rendered will show that the conflict is more apparent than real. While many, if not most, of the states have statutes defining and making seduction a criminal offense, there is considerable difference in the wording of the various statutes, and most of the decisions are based upon the wording of the particular statute under which the prosecution is had. Our statute on this subject was originally adopted from the laws of Wisconsin. The statute of that state was adopted there in 1849, and is as follows:
"Any unmarried man, who, under promise of marriage, or any married man, who shall seduce and have illicit connection with any unmarried female of previous chaste character, shall be guilty of a misdemeanor, and, upon conviction, shall be punished, ... ."
Very soon thereafter, in West v. State, 1 Wis. 209, the question involved in this case came squarely before the Supreme Court of that state. The indictment alleged, and there was evidence to prove, that the prosecutrix was a female of previous chaste character, but the trial court instructed the jury that the law presumes that the prosecutrix was a chaste female previous to the commission of the offense alleged against the defendant. In considering this instruction, the court said:
With this interpretation of the statute in full force, the Legislature of Dakota Territory, by section 6, of chapter 10, of the Laws of Dakota, 1862-63, adopted the Wisconsin law verbatim, and by the well recognized rule of statutory construction the adoption of this statute by the territorial Legislature was an adoption of the construction already put upon it by the Supreme Court of the state from which it was adopted. So there can be no question about the meaning of that statute, from the time it became a part of the territorial law, nor that the construction put upon it there was adopted as much as the law itself.
Our statute remained in its original form until 1865, when the present statute (section 336, Rev. Pen. Code) was adopted from the laws of the state of New York, where it was enacted in 1848, and later on incorporated into the Penal Code, prepared by the Field Code Commission. While the Field Code was not adopted in New York until 1882, it was adopted in its entirety by the Legislature of Dakota Territory, by an act approved January 11, 1865, and our present statute appears as section 330 of chapter 17, Session Laws of 1864-65. It is different, in one respect, from the Wisconsin statute, but the portion of it involved in this case was not changed, and there is nothing to indicate that a new construction should be put upon the unchanged portion.
Our attention has not been called to any case decided by the Court of Appeals of New York that turned upon the precise question involved in this case. Kenyon v. People, 26 N.Y. 204, 84 Am.Dec. 177, cited by the state, does not support the contention of respondent. It appears from an examination of the opinion of the court in that case that the prosecutrix testified to her being of previous chaste character, and Balcom, J., in his concurring opinion said it was proper for the state to show this fact.
The case of People v. Brewer, 27 Mich. 134, cited and relied upon by the respondent, is easily distinguished from the...
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