State v. Thornton

• Decision Date: 02 December 1891
• Citation: 18 S.W. 841,108 Mo. 640
• Parties: STATE v. THORNTON.
• Court: Missouri Supreme Court

18 S.W. 841

108 Mo. 640

STATE v. THORNTON.

Supreme Court of Missouri, Division No. 2.

December 2, 1891.

SEDUCTION — CRIMINAL PROSECUTION — EVIDENCE — TRIAL.

1. Under the Missouri statute making it a crime to seduce, under or by promise of marriage, an unmarried female of good repute under 18 years of age, evidence that defendant had promised to marry a girl 17 years old, of good repute, if she would have sexual intercourse with him, and that thereupon he had sexual intercourse with her, is sufficient to sustain a conviction.

2. When the state proves the age of the female, her good repute, the promise of marriage, and the seduction by virtue of that promise, it makes out a prima facie case, and a want of chastity, if relied on in defense, must be shown by the defendant.

3. After the opening statement for the prosecution had been made, the court discharged a juror on account of sickness, both sides consenting. Afterwards defendant's attorney asserted that he proposed to save the point, whereupon the court announced that unless he consented to such withdrawal the juror would be called back. Defendant's attorney then agreed to waive the point, and another competent juror was called, and accepted by both parties. Held that, in the absence of any showing that defendant was prejudiced by such action, there was no error.

4. Where exception is taken to remarks alleged to have been made by the prosecuting attorney, most of which are denied by him, and the court overrules the objection without giving any reason therefor, and without certifying in the record what was said, the judgment will not be disturbed on that account.

Appeal from circuit court, Montgomery county; E. M. HUGHES, Judge.

Indictment for seduction under promise of marriage. Defendant was convicted, and appeals. Affirmed.

Nat. C. Dryden, for appellant. The Attorney General, for the State.

THOMAS, J.

The defendant was sentenced to imprisonment in the penitentiary for two years for seduction under promise of marriage, at the June term, 1890, of the circuit court of Montgomery county, on change of venue from Lincoln county, and the case is before this court on defendant's appeal.

1. The first assignment of error is that the testimony of Alice Cook, the prosecutrix, shows she was not seduced under promise of marriage, within the meaning of the statute under which the indictment in this case was drawn. Her testimony was, in substance, to the effect that she and defendant became engaged, November 1st, to be married December 19, 1888. She says: "I did not marry him on that day because he made improper proposals to me, and I would not give up, and he put me off on that account. The engagement continued from time to time till Christmas, but we were not married then. The engagement went ahead as it was, and he continued to visit me, and to make improper proposals to me, and, after so long a time, he kept up his proposals for three months, from December to March, and he said there was no use waiting any longer, that as soon as he accomplished what he wanted he would marry me right away, and he said he would not until he did, but as soon as he did he would marry me, and so I gave up to him. He said he would not marry his first wife until she done the same thing, and she done it, and he married her. He said he would not marry me, or any other girl, if she did not do the same thing, and I had confidence in him that he would do what he said he would do, and I gave up to him. I had intercourse with him in my father's house. He proposed that I should come to his bed. He planned everything himself. He said he would wait until all the folks had gone to sleep, and then he would wake me, and then I was to come to him, and he done so, and I went to him. His bed was on the floor; father's bed was over there, and mine was here, and his was over there, [indicating.] Well, he accomplished his act, what he proposed, and had sexual intercourse with me, and after that he continued to visit me just the same. I had intercourse with him twice after that at the same place, — in my father's own room. The first time I had intercourse with him was the 10th of March, 1889, and the second time was about two weeks after that, and again about a month, I suppose, after that. That was all the times he ever had intercourse with me. I became pregnant, and afterwards gave birth to a child on the last of December. The child was born dead, and was well developed. I never had intercourse with any other man. I was seventeen years old on the 19th day of December, 1888." The prosecutrix was shown to be of good repute. Her mother and father testified that defendant asked their permission for him to marry her, which they gave. At the time of the alleged seduction defendant was boarding at the girl's home, which consisted of one room. The defendant offered no evidence whatever to contradict the testimony of the prosecutrix as to her seduction, or to contradict or disprove the testimony of the prosecutrix and her mother and father as to the promise of marriage, nor the testimony as to the good repute of the prosecutrix at the time of and prior to the alleged seduction. There was some evidence tending to prove improper conduct, but nothing criminal, on her part, towards one Price Hill, several months after the alleged seduction, but Price Hill and the girl deny that she was guilty of the conduct charged. Upon this state of facts the court is asked to declare as a matter of law that defendant is not guilty of the crime with which he is charged. The contention is that the prosecutrix bartered her chastity to defendant as the price of the marriage, and, because she did this, he committed no crime. In the case of State v. Eckler, 17 S. W. Rep. 814, (decided at this term,) we had occasion to consider the identical question here presented, and we came to the conclusion that a man is guilty of the crime of seduction under promise of marriage when the female yields to sexual intercourse by reason or by virtue of the promise of marriage, and would not have so yielded except for the promise. After a careful review of the reasons given and authorities cited in the Eckler Case, we adhere to the doctrine there laid down. In some respects the conduct of the prosecutrix in this case is more reprehensible than of the prosecutrix in the Eckler Case. She showed more deliberation in getting out of her own bed, and going to that of defendant, according to arrangements previously made. But in some respects the facts in this case make the defendant's conduct more reprehensible than that of Eckler. In the Eckler Case the female was over 20 years of age. In this case the female was under 18. In that case the evidence, outside of that of the prosecutrix, as to the promise of marriage, was very meager, and defendant went on the stand as a witness, and denied making such promise. In this case the promise of marriage was proven positively by the prosecutrix, her mother and father, and there was not a particle of evidence on defendant's part to the contrary. In that case the state, in the first instance, did not prove the good repute of the prosecutrix, and in rebuttal the evidence of her good repute was not strong. In this case the state proved by several witnesses that the prosecutrix was of good repute, and not a single witness in the case on either side testified to the contrary. We will not repeat here what we said in the Eckler Case, but will supplement what was there said with a further discussion of the principle involved, and a citation and review of other authorities in support thereof.

Judging from the tone of the argument of defendant's attorney, we conclude he has misconceived the whole scope, intent, and purpose of the statute under which defendant was indicted. His argument conveys to our minds the idea that the statute was intended to avenge the wrongs of the seduced female. This is not the object of the statute. We rejoice that the element of revenge in punishment inflicted by the state has been eliminated by all systems of enlightened jurisprudence of to-day. The state punishes, and has a right to punish, alone to prevent crime and protect society. So far as the seduced female is concerned she is ruined, with a bare possibility of restoration in some degree to society. The law cannot restore what she has lost, nor can it compel defendant to restore it. Her wrongs are unredressable. This statute was intended to punish seducers, under promise of marriage, and protect the homes of the innocent, the unsuspecting, the confiding daughters and sisters of our people. Alice Cook is termed by defendant "a hot, brazen, lascivious, lying, perjured woman," and her conduct on the night of her debauchment is portrayed in vivid, we might say lurid, colors. She agreed to get up and go to defendant's bed to have intercourse with him upon a signal to be given by him. He gave the signal, and she went. Here is the attorney's impassioned arraignment of this conduct of the girl: "Is it a pure woman who leaves her bed, in the sacred presence of father and mother, under the holy roof of home, and pollutes the altar of domestic life with the gratification of her debased and brutal desires?" We all say she did wrong, sinned grievously, and grievously has she paid the penalty. Nature and society and her conscience have laid heavy burdens upon her. She lost her lover in whom she confided; she bore the pains of pregnancy, and then went down almost into the valley and shadow of death in passing through the terrible ordeal of maternity. She brought shame and disgrace upon her parents and sisters, and she is now, no doubt, a social outcast, with no hope for the future. But how is it with the defendant? He promised this girl of 17 to make her his wife, and from November to March plied her with his pledges of love and promises of marriage to induce her to yield to his embraces. He succeeded, finally. What punishment has he received?...