Williams v. State

• Decision Date: 13 January 1908
• Docket Number: 12453
• Citation: 92 Miss. 70,45 So. 146
• Court: Mississippi Supreme Court
• Parties: BENJAMIN K. WILLIAMS v. STATE OF MISSISSIPPI

45 So. 146

92 Miss. 70

BENJAMIN K. WILLIAMS v. STATE OF MISSISSIPPI

No. 12453

Supreme Court of Mississippi

January 13, 1908

FROM the circuit court of Calhoun county, HON. J. T. DUNN, Judge.

Williams appellant, was indicted and tried for the seduction of Fanny Carpenter, a female child over eighteen years of age, was convicted and sentenced to the penitentiary for one and one-half years, and appealed to the supreme court.

The indictment was based on Code 1892, § 1298 (Code 1906 § 1372), quoted in the opinion of the court. The testimony for the state made out a strong prima facie case of guilt. The defendant, while denying that the circumstances were such as to make him guilty of the statutory crime admitted having had illicit sexual intercourse with the prosecutrix. He further testified that some time after the commission of the acts whereof the indictment was predicated he offered to marry the prosecutrix which offer she refused. On cross-examination he admitted that he had made such subsequent offer solely to exempt himself from criminal prosecution. The trial court, at the time of the admission of evidence and also later in the instructions to the jury, held that the defendant's subsequent offer of marriage could be considered by the jury, not as exempting defendant from criminal liability, if his guilt were proved, but merely for the purpose of showing the good faith or falsity of the alleged promise to marry on the faith of which it was claimed the woman yielded her person to him. The facts are further stated in the opinion of the court.

Affirmed.

Wm. C McLean, for appellant.

Inasmuch as several witnesses, who had been duly subpoenaed in appellant's behalf, were not present when the case was called for trial, the trial court should have granted appellant's application for a continuance. It has been decided by this court in State v. Norton, 72 Miss. 128, 16 So. 264, 18 So. 916, that before a man can be convicted of seduction of a female over a certain age it is imperatively necessary that the female should be chaste and that the seduction should have been brought about by reason of a false or reigned promise of marriage.

The appellant's application for continuance showed that the testimony of these absent witnesses would have weighed heavily against the chastity of the prosecutrix and against her having been deluded by any promises of marriage. By one witness the appellant expected to prove that the prosecutrix had been seen in questionable resorts soon after she left her home with appellant, and that she had stated at the time to the witness that she had been "in that business for years." By another witness the appellant expected to show that the prosecutrix had stated, soon after leaving her home with appellant, that she didn't expect ever to marry appellant, but was leaving with him because of the way she was treated in her home. By another witness appellant expected to prove that the prosecutrix had, some short while before her trip with appellant, threatened to sue another man for seduction. If these things were true, then the prosecutrix was not chaste, and accordingly the appellant could not be held guilty of the statutory crime.

It is not for the court to pass upon the weight of testimony, but solely upon its materiality. The proposed evidence was not only competent, but material; and after the case was over and all of the admitted evidence before the jury, the proposed evidence of these absent witnesses became doubly apparent.

The trial court, in refusing the appellant's application for continuance, seemed to proceed upon the idea that because the case had been continued for some terms it therefore ought not to be continued again. But certainly if just ground exists for a continuance at a term of court, the fact that there had been continuances of the case at previous terms will not act as a bar to the granting of the continuance asked.

The trial court, in ruling on the evidence, and in passing upon the instructions, seems to have acted on the idea that a guilty party's bona fide offer of marriage of the woman seduced, made to her after her seduction, is no defense. We think this was reversible error. In People v. Gould, 70 Mich. 240, 14 Am. St. Rep., 497, the Michigan court in discussing this subject, says: "The gravamen of the offense under the statute is not the mere fact of intercourse. Two elements must enter into it, namely, seduction and debauchery, and, if there be not concurrence of these two, the statutory offense will not be complete." See also State v. Otis, 135 Ind. 270.

The offense at which Code 1992, § 1298, is aimed, is seduction and debauchery accomplished by the seducer's prior or concurrent promises of marriage. It is a broken promise which the law will consider as an important factor in the offense. It must follow that where seduction is accomplished under promise of marriage and the promise is subsequently kept or sought to be kept, no conviction can be allowed; and, hence, the question of good faith or want of good faith upon the part of the man in entering into such marriage cannot be considered on the question of his guilt or innocence. Commonwealth v. Eicher, 4 Pa. L. J., 326; State v. Otis, supra.

We call attention to the phraseology of the statute, "by virtue of any feigned or false promise of marriage." How can a promise of marriage be reigned or false when the man carries out or is willing to carry out his promise? The law cares nothing for what intent or motive may have caused him to carry out such promise, after he has fulfilled what he promised to do. It must accordingly follow that the subsequent bona fide offer of marriage made by the seducer to the seduced is a complete answer in law to a charge of seduction under our statute law when the seduction was brought about by the seducer's prior or concurrent promise of marriage. Wright v. State, 31 Tex. Cr. Rep., 354, 27 S.W. 815, 37 Am. St. Rep., 822.

It has been held that the marriage of the parties to the seduction, though followed by the desertion of the husband, is a defense to an indictment for seduction, and so is a bona fide offer of marriage. 2 Wharton, Crim. Law, § 760. As throwing light upon this question in different states wherein the matter is dependent upon statute law, see State v. Brandenburg, 118 Mo. 21, s. c., 40 Am. St. Rep., 362; Caldwell v. State, 69 Ark. 322; State v. Bierce, 27 Conn. 319; People v. Gould, 14 Am. St. Rep., 497; State v. Adams, 25 Ore., 172; People v. Samoset, 97 Cal. 488; People v. Hough, 120 Cal. 588.

R. V. Fletcher, attorney-general, for appellee.

The granting of an application for a continuance is largely within the trial court's discretion, and not subject to review in the absence of abuse. There had been several continuances granted previous to the term at which appellant was tried and convicted. Nearly five years had elapsed between the finding of the indictment and the date of trial. At least three of the former continuances were the result of applications made by appellant, and these applications stated what witnesses absent at the respective terms would testify. Some of these witnesses did testify on the trial subsequently, and a comparison of their testimony with the allegations in the applications showing what they were expected by appellant to prove will help to illustrate the reckless method of appellant in attempting to get continuances. The record shows that appellant, although fully aware of the pending indictment prior to the trial term made absolutely no move to secure some of the witnesses upon whose absence from court he subsequently made his last application for continuance. It appears that at the preceding term of court, when a continuance was granted, the state's witnesses were cautioned to be present at the ensuing term, but that appellant's counsel gave no such notice to appellant's witnesses. In fact, it nowhere appears satisfactorily that any of appellant's alleged absent witnesses had ever been in attendance upon the court at any previous term or had ever been subpoenaed prior to the term when the case was tried. Furthermore the record discloses that many of the alleged facts expected to be proved by absent witnesses were shown in evidence on the trial by the testimony of other witnesses for appellant.

As concerns appellant's offer to marry his victim after the wrong, it should be noted that the seduction was accomplished upon an express promise to marry at a particular time and place, namely, the day after the offense and at the town of Walthall. That promise was by appellant wilfully broken, as also were numerous other promises made during the week in which appellant was traveling from place to place with the prosecutrix. Appellant distinctly testified that his subsequent offer of marriage was made solely to escape prosecution. No love nor affection nor sense of duty moved appellant to make the offer.

The cases cited by appellant to show that his subsequent offer was a defense in law to the charge against him are either inapplicable owing to special statutes or else opposed to the great weight of authority. The case of People v. Gould, 14 Am. St. Rep., 497, discusses the effect of a subsequent marriage, not merely an unaccepted offer to marry with intent solely to escape punishment. The same is true of Commonwealth v. Eicher, 4 Pa. L. J., 326. The case of Wright v. State, 31 Tex. Crim. Rep., 354, was decided on a special statute. And examination of all the other cases cited by appellant will be found to be either inapplicable or based upon statutory provisions.

In the absence of a statute making a subsequent marriage a bar to prosecution the Connecticut supreme court has held that a subsequent marriage was no defense; but other courts have...