State v. Horton

• Citation: 6 S.E. 238,100 N.C. 443
• Parties: STATE v. HORTON.
• Decision Date: 23 April 1888
• Court: United States State Supreme Court of North Carolina

6 S.E. 238

100 N.C. 443

STATE v. HORTON.

Supreme Court of North Carolina

April 23, 1888

Appeal from superior court, Rowan county; CLARK, Judge.

On an indictment under Acts 1885, c. 248, for seducing an innocent and virtuous woman under promise of marriage, prosecutrix testified as to the circumstances of the seduction, and that it was against her will. Defendant requested a charge that "if the jury believe the testimony of the prosecutrix that the defendant accomplished his purpose upon her person by force," etc., "and she never consented to the intercourse, defendant is not guilty," which was given as altered by inserting "from" between the words "believe" and "the testimony," and by adding: "If the defendant committed rape, he cannot be guilty of seduction." Held, that such instruction properly submitted to the jury the question of what was proved.

The Attorney General and T. F. Kluttz, for the State.

R. F Armfield and L. S. Overman, for appellant.

SMITH C.J.

The defendant is charged with violating the act of March 6, 1885 c. 248, which is in these words: "That any man who shall seduce an innocent and virtuous woman under promise of marriage shall be guilty of a crime, and upon conviction thereof shall be fined or imprisoned at the discretion of the court, and may be imprisoned in the penitentiary not exceeding the term of five years: provided, however, that the unsupported testimony of the woman shall not be sufficient to convict: provided further, that marriage between the parties shall be a bar to further prosecution under this act." The indictment, pursuing substantially the terms of the enactment, charges that the defendant, at the time and place mentioned, "did unlawfully, willfully, and feloniously seduce one J. S. Wilkinson, an innocent and virtuous woman under promise of marriage, against," etc.; and the accused, being tried upon his plea of not guilty, was convicted by the jury. The testimony before the jury was to this effect: The prosecutrix testified that she was 28 years of age, and was living with her father, as she had lived with him during her whole life, except when she was with a married sister, Mrs. Earnhardt, taking care of her small children, during which interval, about two years since September last, she first met and formed the defendant's acquaintance; that, in about two weeks afterwards, she met him again, and at his first visit to her an engagement was entered into, to-wit, on February 24th, and was to come off in the spring following; that witness was to go to the house of Goodman, another married sister, and thence with the defendant to proceed to Statesville and be married, and that she carried her clothes to the place in order to carry the agreement into effect, but defendant failed to come; that in January or February, 1887, after the engagement, she first submitted to his embraces, and they had sexual connection; that this was accomplished in a room at night, no one else there, though her parents were in an adjoining room, while witness was sitting in a chair, and he at the time saying there was no harm in it, as they were engaged. On cross-examination she stated that the defendant was upon his knees, with one hand over her mouth, and the other around her person; that it occurred twice in the same way, and in each case against her will, and she was told by him to keep it a secret; that a child was born, the result of their intercourse, about the 1st of October, and he was the father, as she had "never had anything to do with any other man at any time in her life;" that his visits to her were about every two weeks for some two months, and afterwards he came to her father's house for several weeks. The corroborative evidence offered by the state was, in general terms, as follows: The justice of the peace who issued the warrant detailed a similar statement of facts made to him, as to the marriage agreement, the time when made and to be performed, and the time and manner of the seduction. The additional supporting evidence, under the statutory requirement, was this: John S. Wilkinson, the father of the prosecutrix, swore that the defendant came to his yard on the first Sunday in May at sundown; would not come into the house, but called witness out, as he said he wanted to have some private talk with him. Said he had heard that "I was mad with him;" and witness answered: "Horton, you know what is the matter. Sarah has caught cold, or is in the family way." Defendant replied he knew what would relieve her; that he had learned it from a young doctor, and witness need not tell any one. He then gave the prescription, and "admitted having promised to marry Sarah, but said he did it out of devilment, as many other young men." The prosecutrix was supported in her testimony about going to the house of her sister, by...