Taylor v. State

• Decision Date: 29 June 1914
• Docket Number: 74
• Citation: 169 S.W. 341,113 Ark. 520
• Parties: TAYLOR v. STATE
• Court: Arkansas Supreme Court

169 S.W. 341

113 Ark. 520

TAYLOR v. STATE

No. 74

Supreme Court of Arkansas

June 29, 1914

Appeal from Fulton Circuit Court; Eugene Lankford, Judge, on Exchange; affirmed.

STATEMENT BY THE COURT.

The appellant was convicted of seduction. The prosecutrix testified that she was nineteen years old. She had known appellant since she was ten or eleven years old. They were sweethearts. He first began going with her in the summer or fall of 1910, and continued to do so until November, 1912. She and Taylor were engaged to be married in February, 1912. Taylor asked her to be his wife and she agreed to do so. They discussed the marriage often after their engagement, but no definite date was set when the marriage should take place. It was to be some time in the fall. Taylor had intercourse with her first in May, 1912. The reason she let him have intercourse with her was that they were going to marry, and he said if anything got the matter with her that they would marry right away. He tried two months before their engagement to have intercourse with her and tried often. She discovered that she was pregnant in July, 1912, and informed Taylor of that fact and he wanted her to take medicine and destroy the child. He refused to marry her, and went to Oklahoma. The child was born and was Taylor's child.

The record shows the following:

Q. Is it not a fact that he promised to marry you if you became pregnant, and that is why you had intercourse with him?

A. He promised when we first had intercourse that he would marry me if anything happened.

Q. Had you ever refused him before this?

A. I had refused him a great many times.

Q. Would you have had intercourse with him the first time if he had not promised to marry you if anything happened?

A. No sir.

Q. Then the reason you had intercourse with him was because he promised to marry you if you became pregnant, was it?

A. Yes sir; we were already engaged, and he said if I became pregnant we would marry right away.

She was asked further: "Would you have made any complaint against Hogan Taylor if you had not got in a family way?" and answered, "No; I would not have complained if I had not got in a family way."

The court refused to allow counsel for Taylor to ask the prosecutrix the following question: "Would you like to see this defendant go to the penitentiary?" Appellant saved exceptions to the ruling of the court.

It was shown by the father and mother of Mary Trulson (prosecutrix) that Taylor kept company with their daughter for about a year, and was at their home almost every Sunday in the summer of 1912. "They went together to church, signings and other places often." Mrs. Trulson testified that Taylor courted her daughter from January, 1912, through most of the year and had kept her company some before that; that they were in Missouri in 1911 and Taylor wrote to her daughter Mary while they were there.

It was shown that Taylor was wearing a ring that he said Mary Trulson gave him.

Witness I. E. Taylor testified, on behalf of the State, that he was a brother of the defendant; that Hogan told him in 1912 that he intended to marry Mary Trulson if he got her pregnant. He was asked if he made an affidavit before Squire Dotson, and admitted that he had. Stated that the affidavit was true, and that what he testified to was true.

Annie Taylor testified that she was the wife of I. E. Taylor and a sister-in-law to the defendant; that she heard Hogan tell her husband that he would marry Mary Trulson if he got her pregnant; that they were engaged to be married if he got her that way. She also stated that she signed an affidavit before Squire Dotson, which was true, and stated that it was also true that he said he would marry her if he got her pregnant. This witness further testified as follows: "Mary Trulson asked me if I thought Hogan would be as good as his word. She said she had missed, 'and if this is what is the matter with me, do you reckon Hogan will be as good as his word?' I told her I did not know what he would do."

While Mary Trulson was on the witness stand several letters were handed her by the prosecuting attorney, which she identified as letters she had received from Taylor while she was in Missouri.

Delcie Burton testified that she addressed two letters for Hogan Taylor to Mary Trulson. Stated that she guessed she would know Taylor's handwriting. She was asked if she had seen his writing and whether she was familiar with it, and replied: "Yes, sir; I have seen his writing." She was then handed certain letters and asked whether or not, to the best of her knowledge, these letters were written by the defendant, and replied in the affirmative. She was asked, on cross examination, whether all the writing in these letters was the writing of the defendant, and answered that one page did not look like his writing. She was asked whether or not she knew Taylor's handwriting, and answered, "I would not swear to it." She did not know whether the letters then in the envelopes were the letters that were in the envelopes when she addressed them and when they were mailed or not. She didn't know that the letters were in Taylor's handwriting.

The prosecuting attorney, over the objection of appellant, was permitted to read certain letters, which were numbered from 1 to 5, inclusive. The letters were alleged to be the letters of Hogan Taylor to Mary Trulson, and they were full of expressions of love and of a desire of the writer to see his sweetheart and to be in her company, and to have her return to him, to send her picture, and expressing his desire to go to see her, etc. The appellant excepted to the ruling of the court in permitting the letters to be read.

The prosecuting attorney, over the objection of the appellant was permitted to read the affidavits of I. E. Taylor and Annie Taylor made before Squire Dotson, justice of the peace on the 31st of March, 1913, in which they stated that Hogan Taylor told them that he was engaged to Mary Trulson in the fall of 1912; that he had promised to marry her at that time. The appellant excepted to the ruling of the court admitting these affidavits.

On behalf of the appellant, several witnesses testified that the general reputation of Mary Trulson for truth and morality was bad. Testimony was also introduced tending to prove that she had made contradictory statements.

Among other instructions, the court gave the following:

"3. If you find from the evidence that the defendant prosecuting witness, Miss T., were engaged to be married, and that while engaged, the defendant induced said Miss T. to have sexual intercourse with him by promising that if she became pregnant he would marry her at once, and she submitted to him because of her engagement and promise, you should convict him provided that prior to said intercourse she was chaste."

Among other prayers for instructions, the appellant offered the following, which was refused:

"16. The court instructs you that if you find the defendant had intercourse with the prosecuting witness under a conditional promise of marriage, and the conditions were that the defendant would marry the prosecuting witness in the event that she became pregnant, then such a conditional promise would not be an express promise of marriage, and you should return a verdict of not guilty."

The appellant also asked the following prayer for instruction:

"10. The jury are instructed that the indictment in this case is of itself a mere accusation or charge against the defendant, and is not, of itself, any evidence of the defendant's guilt (and no juror in this case should permit himself to be, to any extent, influenced against the defendant because or on account of the indictment in this case)." The court amended the instruction by striking out that part in parentheses, and gave the same as thus amended.

Appellant also asked the following prayer for instruction:

"15. The court instructed the jury that upon a trial of a criminal cause, if a reasonable doubt of any fact necessary to convict the accused is raised in the minds of the jury, by the evidence itself, or by the ingenuity of counsel, upon any hypothesis reasonably consistent with the evidence, that doubt is decisive in favor of the prisoner's acquittal."

This instruction was also refused.

To the rulings of the court in giving and refusing prayers for instructions appellant duly excepted.

The jury returned a verdict of guilty, and from a judgment sentencing appellant this appeal has been duly prosecuted. Other facts stated in the opinion.

Judgment affirmed.

Watson & Chesnut and C. E. Elmore, for appellant.

1. Instruction No. 3 is not the law, but No. 16 for defendant is the law, and should have been given. The only promise made was a conditional one. This does not constitute seduction. Kirby's Dig., § 2043; 22 L.R.A. 840; 39 N.E. 343; 11 A. & E. Enc. Law, 248; 12 Me. 71; 42 Ga. 289; 43 Tex. 402; 16 Tex.App. 34; 20 Cent. Law Jour. 123.

2. Handwriting can not be proven by opinion of nonexperts. 6 Enc. Ev. 423; 33 N.E. 657; 9 Okla. 569; 59 Kan. 172; 30 Oh. St. 600. The letters were incompetent. 77 Ark. 16.

3. In criminal cases neither depositions nor ex parte affidavits can be introduced. 14 Enc. Ev. 580; 48 Mich. 54; 66 S.W. 1098; 77 S.W. 3.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. Instruction No. 3 was properly given. 109 Ark. 130.

2. The statute was designed to protect chaste females from devices, tricks and artifices by which a lover, on promise of marriage, violates their persons. 38 S.E. 341; 68 L.R.A. 107; 138 N.W. 521.

3. Affidavits may be used to impeach a witness. 108 Ark. 316.

OPINION

WOOD, J., (after stating the facts).

1. Counsel for appellant contends that the only promise...