State v. Jones

• Decision Date: 23 July 1914
• Docket Number: 11839.
• Citation: 80 Wash. 588,142 P. 35
• Parties: STATE v. JONES.
• Court: Washington Supreme Court

142 P. 35

80 Wash. 588

STATE v. JONES.

No. 11839.

Supreme Court of Washington

July 23, 1914

Department 1. Appeal from Superior Court, Kittitas County; Ralph Kauffman, Judge.

George V. Jones was convicted of seduction, and he appeals. Reversed and remanded for new trial.

E. K Brown, of Ellensburg, for appellant.

F. A Kern and E. Pruyn, both of Ellensburg, for the State.

ELLIS J.

This is an appeal from a judgment entered upon a verdict convicting the appellant of the crime of seduction. The appellant was barely 18 years old; the prosecuting witness about 6 months his senior.

1. At the close of the state's evidence in chief the appellant moved for an instructed verdict of not guilty, upon the ground that the testimony of the prosecuting witness had not been corroborated, as required by section 2443, Rem. & Bal. Code, which was in force at the time the seduction was charged to have taken place. The appellant admits that the act of incontinence was sufficiently corroborated. He contends, however, that there was no corroboration as to the promise of marriage. The prosecuting witness testified that the seduction took place during Christmas week of 1912, and that it was induced solely by the appellant's promise to marry her, made a few days prior thereto. The appellant claimed that the first act occurred prior to December 18, 1912, and that the relation commenced and was continued for some months solely through mutual inclination, without any promise of marriage. The corroborating circumstances relied upon by the state were of two kinds. Several witnesses testified that the appellant and the prosecuting witness kept almost constant company with each other to the exclusion of every one else, being together almost every evening covering the period from some time in December, 1912, to March, 1913. Some of these could not say definitely just when this intimate association began, but at least one witness was quite certain that it began about the first or middle of December, 1912. Under the statute then in force, where the promise of marriage was relied upon as the seducing means, corroboration of the female as to the promise of marriage was undoubtedly necessary. In such cases, under similar statutes, it has often been held that corroboration sufficient to sustain a conviction is furnished by proof of circumstances which usually attend an engagement to marry, such as constant and exclusive attention to the female by the accused and the seeking of her society in preference to that of other women.

'The promise of marriage is not an agreement usually made in the presence or with the knowledge of third persons; hence the supporting evidence possible in most cases is the subsequent admission or declaration of the party making it, or the circumstances which usually accompany the existence of an engagement of marriage, such as exclusive attention to the female on the part of the male, the seeking and keeping her society in preference to that of others of her sex, and all those facts of behaviour toward her, which, before parties to an action were admitted as witnesses in it, were given to a jury as proper matter for their consideration on that issue.' Armstrong v. People, 70 N.Y. 38, 44; State v. Curran, 51 Iowa, 112, 49 N.W. 1006; State v. McClintic, 73 Iowa, 663, 35 N.W. 696; State v. Wycoff, 113 Iowa, 670, 83 N.W. 713.

In the nature of the case, the corroborative evidence must nearly always be circumstantial. No circumstance could be more persuasive than the fact that the accused and the prosecuting witness showed a marked preference for each other's society to the exclusion of others, both before and immediately after the time of the alleged promise. The evidence referred to was admissible as corroborative of the seducing promise. Its weight was for the jury.

In April, 1913, the prosecuting witness, suspecting her condition, consulted one Dr. Harrell, who confirmed her suspicions. She told appellant of this fact, and he also consulted this same physician, and received the same information. Thereafter the appellant informed his mother of the situation, and she, her sister, and the prosecuting witness also visited Dr. Harrell, who called in another physician, and, after a physical examination, advised the three women that the girl was pregnant. The appellant's aunt testified that his mother then expressed herself as satisfied that such was the girl's condition. Shortly afterwards the appellant's mother and aunt made an appointment to visit another physician with the prosecuting witness. The prosecuting witness testified that the mother stated that she thought this doctor would help her out. The appellant's mother at no time denied making this statement. Pursuant to this appointment, appellant's mother and aunt and the prosecuting witness visited the physician in question, and, while they were there, the appellant also came in, but there is no evidence that he took part in the conversation. The physician testified to the effect that the prosecuting witness requested him to help her out of her predicament, which request was refused. The request, however, was made in the physician's private office, and not in the hearing of the other three. In view of the failure of the appellant's mother, when on the witness stand, to deny that this visit was inspired in the hope of procuring an abortion, and in view of the fact, also undisputed by her, that, prior to this visit, she was satisfied of the condition of the prosecuting witness, and in view of the fact that the appellant himself visited the office of this physician at the same time that the other three participants were there, it is difficult to escape the force of this visit, under all the circumstances, as tending to show that all four of the participants therein knew and approved of the intention on the part of the prosecuting witness, if possible, to procure an abortion. Shortly afterwards the appellant's mother and aunt made an engagement with the prosecuting witness to visit a justice of the peace. Pursuant to that engagement, the three met in the office of the justice, and the prosecuting witness there signed a release of claim upon the appellant for further liability for her unborn child, in consideration of the payment of $50. The appellant's mother testified, as leading up to this payment, as follows:

'We called her up to find that out--to see what she wanted done--and she said that some one had told her it would take $50 to have an operation, and that was the amount she wanted, but she wanted it with the privilege of getting more, because that wasn't enough, and I told her we could not give her that much; that we didn't have it. Q. Did you give her any money to have an operation? A. No, sir; I gave it to her to help her out.'

While the appellant testified that he did not know of his mother's visit to Dr. Harrell, and did not authorize any of the things done by her, his participation in the culminating visit to the other doctor was evidence tending to show that he knew of, and consented to, the other visits. He also testified that he knew nothing of his mother's visit to the justice of the peace, but admitted that he afterwards personally repaid the loan which the mother made in order to secure the $50 paid to the prosecuting witness. All of these things had a strong tendency to prove that throughout the mother and aunt were acting as his agents in the premises. The question was one for the jury. Counsel for the appellant admits that proof of an effort to secure an abortion on the part of the accused would be corroborative of the promise of marriage. People v. Orr, 92 Hun, 199, 36 N.Y.S. 398. We think this evidence, taken as a whole, had a corroborative tendency. Its weight was for the jury.

2. The prosecuting witness and several others were permitted, over appellant's objections, to testify that the appellant and prosecuting witness kept company with each other for about six months after the alleged seduction. The prosecuting witness also testified that she and the appellant continued acts of incontinence until the latter part of March, subsequent to the alleged seduction. The admission of this testimony is assigned as error. The testimony of the prosecuting witness touching the subsequent acts was admitted without objection. In any event, its admission was not error. State v. Robertson, 121 N.C. 551, 58 S.E. 59; Sherwood v. Titman, 55 Pa. 77. There can be no question as to the proper admission of the evidence of continued association.

'The conduct and relation of the parties after, as well as before, the date of the alleged seduction may be shown. Such evidence is relevant to show that consent was obtained by promises and inducements and what they consisted of.' Underhill, Criminal Evidence (2d Ed.) § 388, p. 666; 11 Encyc. of Evidence, p. 698; State v. Curran, 51 Iowa, 112, 49 N.W. 1006.

3. The court refused to permit the appellant to introduce evidence of a specific unchaste act of the prosecuting witness committed with a man other than appellant some time after the alleged seduction. It is urged that, inasmuch as the court admitted evidence of illicit relations between the appellant and the prosecuting witness after the alleged seduction, the defense permitted should be as broad as the prosecution. This, of course, is usually true, but has no application to the case here presented. The evidence of subsequent acts of unchastity with other men should be excluded for the very reason that evidence of such subsequent acts with the accused should be admitted. The latter are admitted as tending to show a consent induced by a promise of marriage, because they would probably result from the same inducing cause. The former are inadmissible because the subsequent unchaste...