Hay v. State

• Citation: 98 N.E. 712,178 Ind. 478
• Decision Date: 28 May 1912
• Docket Number: No. 22,132.,22,132.
• Parties: HAY v. STATE.
• Court: Supreme Court of Indiana

178 Ind. 478

98 N.E. 712

HAY

v.STATE.

No. 22,132.¹

Supreme Court of Indiana.

May 28, 1912.

Appeal from Circuit Court, Du Bois County; John L. Bretz, Judge.

Floyd Hay was convicted of seduction, and he appeals. Affirmed.

Thos. W. Lindsey and Chas. P. Bock, for appellant. Thomas M. Honon, Thomas H. Branaman, Edwin Corr, and James E. McCullough, for the State.

MORRIS, J.

Prosecution by affidavit for seduction under section 2354, Burns' Stat. 1908. Appellant filed a motion to quash the affidavit which was overruled. Trial by jury; verdict of guilty. From a judgment of conviction, this appeal is prosecuted.

[1] Appellant contends the lower court erred in overruling his motion to quash. The motion was oral, and the record discloses no ground on which it was based; consequently it presents nothing here for consideration. Scott v. State, 96 N. E. 125;Hawks v. State, 96 N. E. 593;Leach v. State, 97 N. E. 792.

Appellant has assigned as error here that the affidavit does not state facts sufficient to constitute a public offense. The affidavit is sufficient when assailed for the first time in this court. Robinson v. State, 97 N. E. 929. Complaint is made of instructions numbered 5 and 6 given by the court on its own motion. These instructions related to corroborative evidence required by section 2120, Burns' Stat. 1908. Without setting out these instructions, it is sufficient to say that neither of them was erroneous.

[2] In instruction No. 10 given by the court on its own motion, the jury was directed as follows: “In determining whether the prosecuting witness has been corroborated by one or more witnesses, or by a witness or witnesses and strong circumstantial evidence, you have a right to consider along with all the evidence given in the case *** the fact, if it be a fact, that at about the time of the alleged seduction the prosecuting witness made any preparations for herself in getting ready for the approaching marriage ceremony, and whether about the same time she made any preparations for going to housekeeping.”

Appellant by his requested instruction 5 1/2 sought to have the jury informed as follows: “I instruct you that evidence that the prosecuting witness some time after she claims that the defendant seduced her made some new clothes and quilts, and performed other acts in preparation of marriage, cannot be considered by you as corroborating or tending to corroborate the prosecuting witness that the defendant promised to marry her, and that she yielded to his solicitations because of that promise, but the corroborating testimony must come from some witness other than the prosecuting witness.”

It is earnestly contended by appellant that the court erred both in the giving of instruction No. 10 and in refusing No. 5 1/2 requested because the jury was in effect informed that a mutual promise to marry might be inferred from things done by the prosecuting witness, without the presence of knowledge of the defendant; that such evidence is merely self-serving. It is not claimed by the state that there was any evidence aside from that of the prosecuting witness that defendant had any knowledge of her preparations for a wedding.

In Graham v. Martin, 64 Ind. 567, an action for breach of promise to marry, the question here involved was decided by this court. In the course of the opinion the following language was used: “Objection is made to the following portion of the seventh charge, viz., that the jury, in deciding whether a contract of marriage existed between the parties, might consider the fact as to any preparation the plaintiff might have made for marriage,” etc.

In Russell v. Cowles, 15 Gray (Mass.) 582, 77 Am. Dec. 391, it is decided that: “In an action for breach of promise of marriage, evidence of preparations for performing the contract made by the plaintiff in the absence of the defendant, and not in any way connected with him, is inadmissible to prove the plaintiff's assent to a mutual promise of marriage.” We think this decision asserts the better law. 2 Parsons, Con. 62.

In the discussion of this subject in Elliott on Evidence, the author says in section 3149: “The conduct and statements of the parties immediately before and after and at the time of the alleged seduction may generally be shown as explanatory and as part of the res gestæ. But evidence of preparations made by the prosecutrix for marriage to the defendant is not admissible as part of the res gestæ. The contrary view seems to be taken by Mr. Underhill, but if he means to state that such evidence, and that the consultation by her with her parents regarding preparations for the wedding, can be shown against the defendant when the latter had no part therein and no knowledge thereof, the statement seems to be clearly erroneous, and it is criticized in a recent case, wherein it is held that such evidence is no part of the res gestæ, and comes clearly within the rule excluding acts and declarations merely self-serving and of a hearsay nature.” The doctrine declared by Judge Elliott is approved quite generally in other jurisdictions. People v. Tibbs, 143 Cal. 100, 76 Pac. 904;Cooper v. State, 90 Ala. 641, 8 South. 821;State v. Lenihan, 88 Iowa, 670, 56 N. W. 292;State v. Buxton, 89 Iowa, 573, 57 N. W. 417; Commonwealth v. Walton, 2 Brewst. (Pa.) 487; Russell v. Cowles, 15 Gray (Mass.) 582, 77 Am. Dec. 391;Weaver v. Bachert, 2 Pa. 80, 44 Am. Dec. 159; 11 Ency. Evidence, p. 699.

We are of the opinion that the court erred both in giving instruction 10 and in refusing the one requested.

[3] The appellant also claimed the court erred in refusing his requested instruction No. 9 which was as follows: “I instruct you that the material and essential points of the crime of seduction as defined by statute are (1) the promise to marry; (2) the seduction under such promise; (3) the previous good reputation for chastity of the party seduced. And unless you find that the evidence of Myrtle Whitten establishes all of these elements, and unless you further find that the testimony of Myrtle Whitten is corroborated in each of these three points, if she has so testified, you must find the defendant not guilty.” (Italics ours here and throughout opinion.) Myrtle Whitten did not testify to her own previous reputation for chastity. It would be remarkable that any one in any case should testify to his own reputation. While the state was bound to prove that Myrtle Whitten was, at the time of the alleged seduction, “of good repute for chastity,” it was not bound to prove such repute by her, and consequently the instruction tendered was erroneous, and there was no error in refusing it.

[4][5] Counsel for appellant earnestly contend that there was not, after eliminating from consideration the evidence relating to Myrtle Whitten's preparations for marriage, sufficient corroborative evidence to sustain the verdict under Burns' Stat. 1908, § 2120, which provides that “in prosecution for seduction *** the evidence of the female must be supported by at least one other witness, or by strong corroborating circumstances as to every material point necessary to the commission of the offense.” This statute was enacted in 1905. Acts 1905, p. 638. It superseded the statute of 1881 which provided that “the evidence of the female must be corroborated to the extent required as to the principal witness in cases of perjury.” R. S. 1881, § 1807; section 1876, Burns' Stat. 1894; section 1876, Burns' Stat. 1901.

In La Rosae v. State, 132 Ind. 219, 31 N. E. 798, it was held in substance that the testimony of the female, on each material point, must be corroborated to the extent required as to the principal witness in cases of perjury.

It is insisted by appellant that under the statute of 1908 the evidence of the female must be supported not merely by...