State v. Patterson

• Decision Date: 31 October 1885
• Citation: 88 Mo. 88
• Parties: THE STATE v. PATTERSON, Appellant.
• Court: Missouri Supreme Court

88 Mo. 88

THE STATE

v.PATTERSON, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Livingston Circuit Court.--HON. J. M. DAVIS, Judge.

REVERSED.

Broaddus & Wait for appellant.

(1) The court erred in sustaining the state's demurrer to the plea of once in jeopardy. Flagg v. People, 40 Mich. 706; Gordon's case, 40 Mich. 716; State v. Moon, 41 Wis. 684; State v. Moore, 66 Mo. 372; Shepherd v. People, 25 N. Y. 406. (2) The court erred in permitting the state to cross-examine defendant as to his having fled to avoid arrest, it not being a matter testified to by him in chief. State v. Porter, 75 Mo. 171; State v. Turner, 76 Mo. 351; State v. McGraw, 74 Mo. 573; State v. McLaughlin, 76 Mo. 324; State v. Douglass, 81 Mo. 231. (3) The court erred in giving the state's first instruction. The prosecuting witness must surrender her chastity by reason of the promise of marriage, relying on that and nothing else. People v. Clark, 33 Mich. 112; State v. Wilson, 58 Ga. 9. (4) Mrs. Lee should not have been permitted to testify as to a promise of marriage made in October, 1881, which was seventeen months after the alleged seduction. (5) The court erred in refusing defendant's proof of prior acts of unchastity of Sarah Loe with other persons than the defendant. People v. Bowen, 26 Ohio St.

B. G. Boone, Attorney General, for the state.

(1) The plea of once in jeopardy was not well taken in this case. 1 Whar. Crim. Law (5 Ed.) sec. 591; Statev. Hays, 78 Mo. 605; Const. of Mo., art. 2, sec. 23; State v. Blaisdell, 59 N. H. 328; State v. Sherburne, 58 N. H. 535; State v. Rust, 31 Kan. 509. (2) Evidence of previous specific acts of unchastity on the part of the prosecutrix was inadmissible. R. S., sec. 1259; State v. Brassfield, 81 Mo. 151; Bowers v. State, 29 Ohio St. 542. (3) The instructions given by the court properly declared the law of the case, while those asked by defendant and refused were properly refused.

SHERWOOD, J.

The defendant was indicted under section 1259, Revised Statutes, for the seduction of Sarah Loe, and on trial had was convicted and his punishment assessed at two years in the penitentiary. He had been previously tried on the same indictment and found guilty, and his punishment assessed at a fine of four hundred dollars and one day's imprisonment in the county jail, but on his motion for a new trial this verdict was set aside on the ground of the insufficiency of the evidence; and on the second trial he interposed the plea of once in jeopardy, to which the state demurred and the plea was held bad.

I. There was no error committed touching this plea. Section twenty-three, article two, of our Bill of Rights does not embrace a case of this kind. If a person be acquitted by a jury he could not again for the same offence be placed upon trial; for this would be to put him “in jeopardy” within the direct terms of the constitution; but where, as here, the defendant moved for a new trial, he “may again be put upon trial upon the same facts before charged against him, and the proceedings had will constitute no protection.” Cooley's Const. Lim. 327-8; State v. Hayes, 78 Mo. 600.

II. It was error to permit the state to cross-examine the defendant as to matters not testified to by him in chief. The statute on this point (sec. 1918) is very plain and the rulings of this court on the point have been so frequent that it would seem that a very little attention on the part of trial courts would prevent the necessity of our ruling the point any more. State v. Porter, 75 Mo. 171; State v. McGraw, 74 Mo. 573; State v. Turner, 76 Mo. 351; State v. McLaughlin, Id. 324; State v. Douglass, 81 Mo. 231.

III. A more important point is now to be discussed; it is this: whether the defendant should have been permitted to show that prior to the time the alleged seduction took place, which, it seems, was in May, 1880, the prosecutrix had been guilty of acts of lewdness and unchastity with other men than the defendant. In cases of rape the point of the admissibility of evidence of specific acts of unchastity on the part of the prosecutrix, occurring with other men prior to the one charged in the indictment, has not met with a uniformity of ruling. I here collate some of the authorities which deny the admissibility of such evidence: Rex v. Hodgson, Russ. & Ry. Cr, Cas. 211; Rex v. Clark, 2 Stark. Rep. 241; Reg. v. Holmes, 12 Cox C. C. 137; Pleasant v. State, 15 Ark. 624; State v. Jefferson, 6 Ired. 305; State v. Forshner, 43 N. H. 89; State v. Knapp, 45 Ib. 148; People v. Jackson, 3 Parker C. R. 391. Affirming the admissibility of such evidence, among others, are: Rex v. Barker, 3 Carr. & P. 589; Rex v. Martin, 6 Ib. 562; Reg. v. Robbins, 2 Mood. & R. 14; People v. Abbott, 19 Wend. 192; State v. Benson, 6 Cal. 221; State v. Johnson, 28 Vt. 512; State v. Reed, 39 Vt. 417; State v. Murray, 63 N. C. 31; Sherwin v. People, 69 Ill. 55; Strang v. People, 24 Mich. 1.

The opinion of Judge Cowen in People v. Abbott, supra, which affirms the admissibility of evidence of particular acts of unchastity in cases of rape, is a very able one, reviewing the authorities then extant on the subject. That case has been criticised, but it has been frequently followed, and the ideas it embodies are fast gaining ground, as shown by some of the recent citations I have made. The reasoning of that case I have never seen answered, nor do I believe it can be. I have cited it, as well as others of like sort, because believing that authorities which recognize the rule in cases of that character sanction similar evidence in cases like the one under discussion. In short, that wherever by the nature of the proceeding, or the character of the prosecution, the chastity of the prosecutrix is brought into question any evidence which tends to impeach her chastity; to render it less probable that she was ravished in the one case or seduced and debauched in the other, is competent and relevant, whether consisting of evidence of her general reputation or of evidence of specific acts of lewdness or unchastity. And authorities are not wanting in support of this position, when the prosecution is for the offence with which the defendant in this instance stands charged.

The language of section 1259, supra, so far as pertinent here, is: “If any person shall, under promise of marriage, seduce and debauch any unmarried female of good repute,” etc.; and “In trials for seduction under promise of marriage the evidence of the woman as to such promise must be corroborated to the same extent required of the principal witness in perjury.” Sec. 1912. In Michigan, the statute in relation to seduction reads: “If any man shall seduce and debauch any unmarried woman he shall be punished,” etc. And in that state it has been ruled under that statute, that the chastity of the prosecutrix, previous to the alleged offence, is in all cases involved, and that evidence, even elicited from her own cross-examination is competent to prove illicit connection with another man. People v. Clark, 33 Mich. 112. Marston, J., in that case remarking: “Illicit intercourse alone would not constitute the offence charged. In addition to this, the complainant relying on some sufficient promise or inducement and without which she would not have yielded, must have been drawn aside from the path of virtue she was honestly pursuing at the time the offence charged was committed. * * * The object of this statute was not to punish illicit cohabitation. Its object was to punish the seducer, who, by his arts and persuasions, prevails over the chastity of an unmarried woman, and who thus draws her aside from the path of duty and rectitude she was pursuing. If, however, she had already fallen and was not at the time pursuing this path, but willingly submitted to his embraces as opportunity offered, the mere fact of a promise made at the time would not make the act seduction. Nor will intercourse which takes place in consequence of and reliance upon a promise made, make the act seduction. If this were so, then the common prostitute, who is willing to sell her person to any man, might afterwards make the act seduction by proving that she yielded, relying upon the promise of compensation made her by the man, and without which she would not have submitted to his embraces. Illicit intercourse, in reliance on a promise made, is not sufficient, therefore, to make the act seduction.

The nature of the promise, and the previous character of the woman as to chastity, must be considered. In most of the states, their statute makes the seduction of a woman of ‘previous chaste character’ an indictable offence, while there are no such words, nor any of like import in ours, and the courts have held that the words, ‘previous chaste character,’ mean that she shall possess actual personal virtue, in distinction from a good reputation, and that a single act of illicit connection may, therefore, be shown on behalf of defendant. If, however, we are correct in what we have already said upon the question as to what is necessary to make an act of illicit intercourse, seduction, then the chastity of the female, at the time of the alleged act, is in all cases involved, and the presumption of law being in favor of chastity, the defence have a right to show the contrary. This, upon principle, then, we consider the correct doctrine, and that it necessarily follows from what we have said upon the other question.”

In another case in that state, testimony of other men was held competent to show that they had illicit sexual acts with the prosecutrix prior to the time of the alleged seduction; provided there was no unwillingness on their part to testify. People v. Brewer, 27 Mich. 134. The statute on this subject in Pennsylvania very closely resembles ours: “The sednction of any female of good repute under twenty-one years of age with illicit connection, under promise of marriage,” etc. Under that statute it has been ruled that to constitute the offence...