State v. Wallace

• Decision Date: 25 January 1916
• Citation: 79 Or. 129,154 P. 430
• Parties: STATE v. WALLACE.
• Court: Oregon Supreme Court

154 P. 430

79 Or. 129

STATE v. WALLACE.

Supreme Court of Oregon

January 25, 1916

Department 2.

Appeal from Circuit Court, Lane County; J. W. Hamilton, Judge.

Charles L. Wallace, the defendant, was indicted for the crime of seduction under promise of marriage, and, having been convicted and sentenced thereon, prosecutes this appeal. Reversed and remanded.

L. Bilyeu, of Eugene (W. B. Dillard, of Eugene, on the brief), for appellant. J. M. Devers, of Eugene, for the State.

BENSON J.

It is contended by appellant that, since it appears conclusively from the record that at the time of the commission of the alleged crime the prosecutrix was a divorced woman, she was not "an unmarried female" within the meaning of the statute, and that therefore the defendant was entitled to an instructed verdict of acquittal. The statute under which the prosecution is maintained provides that:

"If any person, under promise of marriage, shall seduce and have illicit connection with any unmarried female of previous chaste character, such person, upon conviction shall be punished," etc.

Our attention has been called to but one reported case directly in point, namely, Jennings v. Commonwealth, 109 Va 821, 63 S.E. 1080, 21 L. R. A. (N. S.) 265, 132 Am. St. Rep 946, 17 Ann. Cas. 64, in which it was held, under a statute practically identical with ours, that the phrase "an unmarried female" should be construed to mean a woman who has never been married, and that the seduction of a divorced woman is not a violation of the law. In Pratt v Mathew, 22 Beav. Rep. 328, it is said that the word "unmarried" does not necessarily mean "without having been married," and that no fixed meaning can be assigned to it, but it must be determined according to the circumstances of the case. This authority has been cited with approval by many of the courts, and indeed is approved in the case of Jennings v. Commonwealth, supra, in which case the court argues that since a divorced woman has necessarily had experience in the lecherous ways of men, she is immune from their wiles and does not need the protection of the law. We cannot agree with this interpretation, however, for the spirit of the law does not and cannot take into consideration the wisdom and experience of those whom it undertakes to protect from wrong. We entertain the view that law is intended for the safeguarding of the virtue of the chaste widow just as much as for that of the woman who has never been a wife.

Upon the trial the defendant requested the court to charge the jury as follows:

"That the letters alleged to have been written by the defendant to prosecutrix were not identified or proved to be letters of the defendant except by the prosecutrix's testimony; hence they do not afford evidence corroborating prosecutrix's testimony."

This instruction was refused, and such refusal is assigned as error. The record discloses...