State v. Johnson

• Decision Date: 07 December 1921
• Docket Number: 498.
• Citation: 109 S.E. 786,182 N.C. 883
• Parties: STATE v. JOHNSON.
• Court: North Carolina Supreme Court

109 S.E. 786

182 N.C. 883

STATE v. JOHNSON.

No. 498.

Supreme Court of North Carolina

December 7, 1921

Appeal from Superior Court, Wilkes County; Ferguson, Judge.

Smith Johnson was convicted of seduction under promise of marriage and appeals. New trial.

In prosecution for seduction under promise of marriage, whether the illicit intercourse was induced by accused's promise of marriage or merely to gratify prosecutrix's lust, held for the jury.

This was an indictment for seduction under promise of marriage. There was evidence tending to show that the prosecutrix Darrie Ball, before the seduction charged in this case, had been seduced under promise of marriage by Thomas Ball. This she admitted. Ball afterwards married her, and they lived together as man and wife, but he did not marry her until she gave birth to a child, of which he was the father, she being at that time about 16 years of age. She had been married to Ball about 14 years, when he died, in January, 1916. She had five children by him including the one not born in wedlock. She was 30 years old when Ball died, and the defendant was 21 at that time. There was some evidence that he had never had anything to do with a woman in his life, and at the time of the death of prosecutrix's husband the defendant was going to see a young girl just across the mountain beyond the home of the prosecutrix. The defendant prior to the death of prosecutrix's husband, and afterwards until about one year ago, lived within sight and within less than one-half mile of her home.

There was evidence tending to show that the prosecutrix was seduced by the defendant under a promise of marriage, and, slight though it may have been, it was sufficient to be submitted to the jury. She confessed to the jury that she submitted to the defendant "partly because she loved him and partly because she knew that it would be good to her." There was considerable testimony, which was, more or less to the same effect. There also was further testimony in defendant's behalf tending to show that soon after the death of the husband and prior to July, 1916, prosecutrix began meeting the defendant along the road near the home of defendant and would walk with him and tease him about the girls and invite him to come and see her. As defendant would pass the home of prosecutrix's brother going to see his girl across the mountain, she would be there, and her brother would hitch his ox to the wagon and drive the defendant to see his girl, and the prosecutrix would go along, and come back in the same wagon, and leave defendant at the home of his girl. Later they would carry him in the wagon to visit their homes. Some time during the month of July, 1916, at the invitation of the prosecutrix, the defendant went to her home, and they sat around the fireplace until the children went to bed. After they sat there for a while, the prosecutrix moved her chair over close to defendant, put her arms around his neck, and said, "I have been loving you for a good while, and you did not find it out until a few days ago." She hugged and kissed him, and put her hands upon him in such a way as to excite his sexual passions. At this he asked her to have intercourse with him, she consented, and they had intercourse there in a chair. After the intercourse, they talked about the girl the defendant was going to see, and she asked defendant when he and the girl were going to marry, after which defendant went home. Nothing was said about their marrying. Defendant went to see prosecutrix often afterwards, and often had sexual intercourse with her up to some time before the baby was born on July 16, 1918. Defendant and prosecutrix had said nothing about marrying until defendant was drafted into the United States army for service overseas, and after the child was born and prior to July 21, 1918, when defendant left for the camps. At this time defendant went to see prosecutrix, she cried and complained to him that she was not able to raise the baby and begged defendant to marry her. Defendant promised her then if she would keep a decent house and conduct herself properly, until he returned from the army, that he would marry her, and this is the promise he referred to in the letters copied in the record. After defendant returned from the army he found that prosecutrix had not kept a clean house as she had promised to do and prosecutrix asked him to try her again and she would keep the boys away. Defendant consented to do so, all of her promises she failed to keep and all relations were broken off, and the defendant married December 5, 1920, and was arrested in this action in January 1921.

The court charged the jury among other things not related to this instruction, as follows:

"If you find from the evidence beyond a reasonable doubt that the prosecutrix never had sexual intercourse with any man except her husband and the defendant, and if you should further find from the evidence beyond a reasonable doubt that she only had sexual intercourse with her husband before she was married after the engagement between her and her husband to be married, and it was at his solicitation after the said engagement and promise of marriage and before their marriage, and if you should further find from the evidence beyond a reasonable doubt that the defendant and the prosecutrix were engaged to be married, and that the defendant solicited her to have intercourse with him, promising to marry her, and she yielded to him because she trusted him and because he promised to marry her, she would be in the eyes of the law an innocent and virtuous woman."

The court refused to give the following instruction requested by the defendant:

"(1) The court charges you that an innocent and virtuous woman under the law of this state is a woman who had never had actual illicit sexual intercourse with any man. The court further charges you that, if you should find from the testimony that the prosecutrix permitted her husband to have sexual intercourse with her prior to their marriage, then the court charges you that she would not be an innocent and virtuous woman, and your verdict in this case, if you so find, will be not guilty.

(2) If you find from the testimony that the prosecutrix permitted her husband prior to their marriage to have sexual intercourse with her, that said sexual intercourse was illicit, notwithstanding you further find that the same was produced by seduction under promise of marriage, as the seduction under such a promise does not render sexual intercourse legal (except as between the prosecutrix and her husband), but to all the rest of the world it was illicit sexual intercourse, and the defendant would not be guilty."

Defendant duly excepted to the instruction given and to the refusal of those requested.

There was a verdict of guilty, and from the judgment thereon defendant appealed to this court, after reserving his exceptions.

J. A. Rousseau, of North Wilkesboro, and Chas. G. Gilreath, of Wilkesboro, 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 evidence in this case is not only repulsive, but filthy, in some of its parts, but we are to determine upon the legal guilt of the defendant, or, in other words and speaking more accurately, whether he has been legally tried below. We do not think that he has been, and will proceed now to state our reasons for so thinking. The instruction above set forth contains a proposition of law which cannot be sustained, and it no doubt caused the defendant's conviction. We know of no case in this state which decides that a woman would be innocent and virtuous under the facts and circumstances detailed by the judge therein. If a woman commits adultery with a man simply because she is solicited to do so, even upon the promise of marriage, she is to be pitied, but is not "innocent and virtuous" within the meaning of the statute upon which this prosecution is based. If she yielded to temptation solely because of the promise, and not to gratify her lustful passions, she is still an adulteress, and...