Woodard v. State
| Decision Date | 20 October 1919 |
| Docket Number | 152 |
| Citation | 215 S.W. 708,140 Ark. 258 |
| Parties | WOODARD v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Johnson Circuit Court; A. B. Priddy, Judge; reversed.
Judgment reversed and cause remanded.
W. E Atkinson and G. O. Patterson, for appellant.
1. The prosecuting witness was not sufficiently corroborated as to the promise of marriage. Kirby & Castle's Digest, § 2216; 130 Ark. 149; 27 Id. 16; 35 Cyc. 1364; 101 Ark. 45; 93 Va. 815; 365 S.W. 366; 15 A. & E. Enc. Pl. & Pr 246; 9 Ala. 641; 89 Iowa 573; 102 Pa.St. 48; 104 Mo. 644; 46 Tex.Crim. 290; 65 S.W. 475; 63 Id. 317; 48 Id. 192; 31 Id. 366.
2. Mrs Basham's testimony was incompetent and no corroboration. 101 Ark. 45; 54 Iowa 743; 55 Id. 258; 50 Id. 317; 86 Ark. 30; 126 Id. 98; 77 Id. 23; 84 Id. 67; 111 Iowa 69; 132 Id. 196; 78 Iowa 123; 110 N.Y. 188.
3. There was no proof that Bessie Miller was a single woman. The burden was on the State to prove this and it failed. 35 Cyc. 1345.
4. The promise must be unconditional. A promise conditioned upon pregnancy is not sufficient. 15 Col. App. 220; 114 P. 585; 38 S.E. 341; 66 Id. 619; 132 S.W. 225; 110 N.W. 380; 15 Ann. Cases, 222; 144 N.Y. 361; 39 N.E. 343; 78 Hun. 509; 29 N.Y.S. 542; 30 Id. 87; 22 L. R. A. 840; 42 Am. St. 700; 35 P. 36; 114 S.W. 841; 119 Id. 866; 136 Id. 1095; 166 Id. 135.
5. It was error to refuse the motion for continuance. 115 Ill.App. 157; 131 Mich. 474.
6. There was error in the instructions given and refused and in permitting the remarks of counsel for the State. 87 Ark. 464.
John D. Arbuckle, Attorney General, and Robert C. Knox, Assistant, for appellee.
1. The testimony of the prosecutrix was sufficiently corroborated. 40 Ark. 482; 77 Id. 468-472; 92 Id. 421; 67 Id. 416; 73 Id. 291.
2. The proof shows she was a single woman. All the circumstances show this. 130 Ark. 149-155.
3. The promise of marriage was unconditional. 113 Ark. 520; 135 Id. 221. The instruction asked by defendant was properly refused. 113 Ark. 520; 135 Id. 221.
4. The motion for continuance was properly refused, as no diligence was shown to obtain the witness.
Appellant was convicted under an indictment charging him with the crime of seduction alleged to have been committed by obtaining carnal knowledge of one Bessie Miller by virtue of a false express promise of marriage, and has prosecuted this appeal to review that judgment.
At the time of the commission of the alleged offense he was sixteen years old and Miss Miller was eighteen.
In response to questions somewhat leading in their nature, Miss Miller testified that she yielded to appellant's importunities because she loved him and he had promised to marry her. She stated that they had been engaged for some time but did not marry on account of his youth, but were to marry as soon as his father consented to the marriage. On her cross-examination, however, when asked why she yielded, she said: "Well, he (appellant) said if anything happened he would marry me." Further direct examination of the witness elicited answers which support the contention of the State that the promise was absolute and unconditional; but when the testimony is considered in its entirety it can not be said that no other construction can be given it and the jury might have found that the consent was based upon the promise to marry "if anything happened." Miss Miller testified that the first act of intercourse occurred in March and a baby was born in December following. Appellant denied that he had ever had sexual intercourse with Miss Miller, and also denied that he had ever promised to marry her.
The court gave a general charge correctly declaring the law applicable to the points in issue except that nothing was said about the effect of a conditional promise. Upon that issue appellant asked the following instruction:
In 24 R. C. L., page 765, the law is stated as follows:
"In those jurisdictions where a promise of marriage is by statute essential to criminal seduction the authorities are practically agreed that intercourse procured through a promise to marry the person seduced in case the intercourse results in pregnancy does not amount to criminal seduction."
The footnote to the text quoted cites the annotated case of State v. Carron, 18 Iowa 372, 87 Am. Dec. 401, and Hamilton v. U. S., 41 U.S. App. D.C. 359, 51 L.R.A. (N.S.) 809, which collect a number of cases on the subject. See, also, Russell v. State, 15 Ann. Cas. 223.
We have had occasion to consider this question in the following cases: Taylor v. State, 113 Ark. 520, 169 S.W. 341; Davie v. Padgett, 117 Ark. 544, 176 S.W. 333; Oakes v. State, 135 Ark. 221, 205 S.W. 305. The case of Davie v. Padgett, supra, was not a criminal prosecution for seduction but was an action for damages for breach of promise to marry.
In the case of Taylor v. State, 113 Ark. 520, 169 S.W. 341, the prosecutrix testified that the reason she let the defendant have intercourse with her was that they were going to marry and he said if anything got the matter with her they would marry right away. An instruction was asked in that case somewhat similar to the one set out above, but we held it was not error to refuse it because "it ignored the testimony tending to show that the sexual intercourse was obtained by an absolute promise on the part of appellant to marry the prosecutrix but to be consummated 'right away' in the event of pregnancy." In the opinion, however, we said:
Substantially the same question was raised in the case of Oakes v. State, supra, and we disposed of the question there on the authority of the cases of Davie v. Padgett, and Taylor v. State, supra, by saying that the testimony did not present the issue that the intercourse was based on a conditional promise of marriage.
We think, however, that the testimony in the present case does not present the issue whether the promise was an absolute or a conditional one, and that the instruction should have been given. Of course, it would have been proper, had the court given that instruction, to declare the converse of it and to have told the jury that if there was an absolute and unconditional...
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Bethel v. State
... ... In this ... ruling the court was clearly in error, for a promise of ... marriage cannot be proved by the declaration of the injured ... party. The ruling is in direct conflict with the decision of ... this court in Carrens v. State, 77 Ark. 16, ... 91 S.W. 30, and Woodard v. State, 143 Ark ... 404, 226 S.W. 124: In the Carrens case we held that the ... injured female could not be corroborated merely by her own ... [162 Ark. 88] letters to the accused, and in the Woodard ... case, supra, we held that neither acts nor declarations of ... the injured female, in ... ...
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Meyers v. State
... ... to establish the fact that there was an express promise of ... marriage, and that she would not have yielded to his embraces ... upon a mere promise to marry in the event of pregnancy. In ... this respect this case is similar to that of Woodard ... v. State, 140 Ark. 258, 215 S.W. 708. Moreover, the ... court submitted that question to the jury by telling them ... that if the promise of marriage was conditional only, such a ... promise would not be an express promise, and that their ... verdict should be not guilty. See also Bethel ... ...
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Meyers v. State, 3788.
...to his embraces upon a mere promise to marry in the event of pregnancy. In this respect this case is similar to that of Woodard v. State, 140 Ark. 258, 215 S. W. 708. Moreover, the court submitted that question to the jury by telling them that, if the promise of marriage was conditional onl......
- Woodard v. State