State v. Primm

• Decision Date: 10 June 1889
• Citation: 98 Mo. 368,11 S.W. 732
• Parties: STATE v. PRIMM.
• Court: Missouri Supreme Court

11 S.W. 732

98 Mo. 368

STATE v. PRIMM.

Supreme Court of Missouri.

June 10, 1889.

SEDUCTION — INDICTMENT — CHARACTER OF PROSECUTRIX.

1. Under Rev. St. Mo. § 1259, providing that "if any person shall, under promise of marriage, seduce and debauch any unmarried female of good repute, under 21 years of age, he shall be deemed guilty of a felony," etc., the indictment need not allege that defendant was unmarried, nor that the person seduced agreed to marry him, nor that she was of sufficient age to negotiate marriage.

2. On trial of an indictment for "seducing and debauching, under promise of marriage, an unmarried female of good repute," the evidence showed that prior to the commission of the offense the prosecuting witness had had sexual intercourse with other men, and was, on numerous occasions, guilty of lewd and indecent conduct, and that her language was that of a person lost to all sense of virtue or propriety; that on one occasion, being asked why she did not resort to prostitution for a living, she replied, "I am not ready yet." There was no evidence that she had reformed, or was attempting to lead a chaste life, at the time her seduction by defendant was alleged to have been accomplished. Held, that a conviction could not be sustained.

3. There being no evidence whatever that the prosecutrix had reformed at the time she received defendant's attentions, an instruction in regard to reformation was unwarranted.

BARCLAY, J., dissenting.

Appeal from circuit court, Knox county; BEN E. TURNER, Judge.

Indictment of James L. Primm for seduction under promise of marriage. The third instruction for the state, referred to in the opinion, was as follows: (3) Although the evidence may show that the prosecutrix had sexual intercourse with witness Hunter in April, 1883, or prior thereto, yet if, at the time the defendant first had sexual intercourse with her, the evidence shows she was honestly pursuring the path of virtue, and that he drew her aside from that path, and overcame her, such act would constitute seduction; but if she was corrupt at the time, and submitted to the defendant from her own lustful propensities, and without any arts of his, then in such case he is not a seducer. Rev. St. Mo. § 1259, provides that "If any person shall, under promise of marriage, seduce and debauch any unmarried female of good repute, under 21 years of age, he shall be deemed guilty of a felony, and, upon conviction thereof, be punished by imprisonment," etc.

O. D. Jones and W. C. Hollister, for appellant. B. G. Boone, Atty. Gen., for the State.

SHERWOOD, J.

The defendant was indicted under the provisions of section 1259 for seducing and debauching, under promise of marriage, an unmarried female of good repute, etc. He was tried, convicted, and sentenced to imprisonment in the county jail for three months, and to pay a fine of $500.

1. Though objections are made to the indictment, it follows the language of the statute, is in the usual form, and is not open to the criticism made on behalf of defendant. It was not necessary that it should be alleged that defendant was unmarried, because the statute levels its denunciations and penalties as well against a married man as against a single man; nor was it necessary to allege that the person seduced agreed to marry defendant, nor that she was of sufficient age to negotiate marriage with him.

2. The testimony in this cause is, to a great extent, couched in the very vernacular of obscenity. It is to be hoped that such a foul record as this has never before been filed in an appellate court. At the close of the testimony for the prosecution the defendant interposed a demurrer to the evidence; but the propriety of the ruling upon it is unimportant, owing to the testimony subsequently introduced on behalf of the defendant. Without detailing all the disgusting particulars of that testimony, it will answer the present purpose briefly to state its most important portions, giving those facts which are undisputed by the prosecuting witness as well as those which she controverts. She states that the defendant began waiting on her in the fall of 1885, and that the crime alleged in the indictment occurred and was consummated about November 28, 1885; but a full month before that time, to use her own language, she states: "Primm first talked to me about having sexual intercourse about last of October, 1885. He tried to get me to drink whisky, and tried to put his hand under my clothes. He said I was the only girl on earth he cared anything for. He then got me down on the floor — got his pants down, and my dress up — tumbled me round on the floor trying to have intercourse with me for half an hour, until I was clean given out. No, we did not have any promise of marriage at that time. He stayed that night till nearly midnight. I never mentioned it to any one." She also admits that she cut hair from her privates and sent it, rolled up in a paper, to a neighbor's daughter; and that on the night of November 28th, the night of the alleged crime, and before its accomplishment, her father, being asleep in bed in the same room in which she and defendant were, exposed his nakedness in a very pronounced manner, and, while she denies having laughed at the exposure, yet she does not say the immodest spectacle caused her any blushes or confusion, or that she imitated the example set by Shem and Japheth in similar circumstances; but, on the contrary, she admits that she and defendant subsequently took a change of venue to the kitchen, in order that she might yield her person to the gratification of his passion, and, this being accomplished, they returned to the room where her father was, and he, being then awake, in response to his inquiries as to where they had been, said "Out in the kitchen to get...