State v. Sortviet

• Decision Date: 04 January 1907
• Docket Number: Nos. 14,922-(19).,s. 14,922-(19).
• Citation: 100 Minn. 12
• Parties: STATE v. KARL J. SORTVIET.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

100 Minn. 12

STATE v. KARL J. SORTVIET.¹

Nos. 14,922-(19).

Supreme Court of Minnesota.

January 4, 1907.

Defendant was convicted in the district court for Norman county, Grindeland, J., of the crime stated in the opinion and appealed from the judgment of conviction. Reversed and new trial granted.

Peter Matson, for appellant.

Edward T. Young, Attorney General, and Nels T. Moen, County Attorney, for the State.

ELLIOTT, J.

The appellant was indicted for the crime of seduction under a promise to marry, and, from a judgment entered upon a verdict of guilty, he appealed to this court. The assignments of error question the sufficiency of the indictment, the correctness of certain rulings upon questions of evidence, and the correctness of parts of the instructions given by the court to the jury.

The indictment charged that Karl J. Sortviet did wilfully and feloniously, under promise of marriage to one Littie Berkeland, seduce and have sexual intercourse with the said Littie Berkeland, the said Littie Berkeland being then and there an unmarried female of previous chaste character." It is contended that the indictment does not allege with sufficient definiteness that the woman was of chaste character at the time of seduction. The indictment is in the form approved in State v. Wenz, 41 Minn. 196, 42 N. W. 933, State v. Abrisch, 41 Minn. 41, 42 N. W. 543, and State v. Framness, 43 Minn. 490, 45 N. W. 1098. "Then and there" must be referred to the time of and immediately before the seduction. The language used is an allegation that she was of chaste character immediately previous to the act.

The motion to dismiss on the ground that the evidence was not sufficient "to sustain the indictment" was properly denied. The defendant admitted the fact of sexual intercourse and practically admitted that he was the father of the child, but denied that he had promised to marry the girl. Her testimony as to terms of the promise was a trifle vague, but, when considered as a whole, the evidence was sufficient to justify the jury in finding that the girl was seduced under a promise of marriage. We are not impressed by the argument that the promise was not sufficient because it was conditioned upon the girl becoming pregnant. See 4 Elliott, Ev. § 3148. It is true that she made this statement, but the jury was not required to accept this particular answer and disregard all the other evidence given by her which tended to show an absolute promise. The statute contains no limitation as to the character of the promise. It is general in terms, and is broad enough to cover any promise of marriage whether conditional or restricted, if it is shown that the effect of the promise was to induce the female to consent to the act of sexual intercourse. It is not necessary that the promise to marry should have been expressed in any particular words; it is sufficient if language was used which implied such a promise and was intended to convey that meaning and was in fact so understood by the girl. State v. Brinkhaus, 34 Minn. 285, 25 N. W. 642.

A sister of the prosecuting witness was permitted to testify that the prosecuting witness had informed her that the defendant had promised to marry her. This evidence was improperly received (Walmsley v. Robinson, 63 Ill. 41, 14 Am. 111) and it was subsequently stricken out by the court. But the complaining witness, over the objection of the defendant, testified that, soon after the seduction, she told her sister that Sortviet had promised to marry her. The making of the alleged promise was about the only seriously controverted issue in the case, and the ruling which permitted this contract to be proven by the statement of one of the parties to a third person in the absence of the other party was clearly erroneous and also prejudicial to the rights of the defendant. Had the issue been as to the making of a contract between A. and B. for the sale of a horse it would not be claimed that A. could be allowed to testify that, immediately after the alleged sale, he had informed C. that B. had agreed to purchase the horse. It is elementary that evidence of this character is not admissible to show a promise to marry. Liebrandt v. Sorg, 133 Cal. 571, 65 Pac. 1098; McPherson...