State v. Moody, 172 N.C. 967 (1916)

Dec. 19, 1916 · Supreme Court of North Carolina
172 N.C. 967


(Filed 19 December, 1916.)

Criminal law — Seduction—Trials—Supporting' Evidence — Statutes.

Upon trial under an 'indictment for seduction under a breach of promise of marriage, Revisal, sec. 3354, requiring supporting evidence to make that of the prosecutrix competent upon the three elements of the crime, it is not necessary that the supporting evidence be sufficient, as substantive evidence, for conviction; and where the good character of the prosecutrix before the act-has been testified to by other witnesses, the act itself admitted, and there is testimony that the defendant had paid the prosecutrix exclusive and assiduous attention for years under circumstances evidencing that he was her accepted lover, her testimony as to the promise of marriage is sufficiently supported by the testimony of others to be competent within the meaning of the statute.

Clark, C. J., concurring.

*968ObimiNal action tried, before Ferguson, J., and a jury, at Fall Term, 1916, of Jackson.

Defendant was convicted and appealed.

Attorney-General Bichett and Assistant Attorney-General Calvert for the Stale.

Moore & Moore and Alley & Buchanan for defendant.

Walker, J.

Tbe defendant was indicted for tbe seduction of an innocent and virtuous woman under a promise of marriage. Revisal, see. 3354.

Tbe statute provides tbat tbe “unsupported testimony” of tbe woman shall not be sufficient to convict.

There are three essential elements of this crime: first, tbe seduction; second, tbe innocence and virtuousness of tbe woman; third, tbe promise of marriage inducing consent of tbe woman to tbe sexual act. S. v. Pace, 159 N. C., 462; S. v. Cline, 170 N. C., 751. Tbe prosecutrix testified to tbe defendant’s promise of marriage; tbat she was persuaded by it to have sexual intercourse with him, and tbat she was a virtuous and innocent woman, never having committed tbe act with any other man.

First. As to her virtue and innocence there was supporting testimony, as tbe State called witnesses who stated tbat tbe character of tbe prose-cutrix bad always been good prior to this occurrence. We have held this to be sufficient as supporting testimony within tbe meaning of tbe statute. S. v. Mallonee, 154 N. C., 200; S. v. Horton, 100 N. C., 443; S. v. Cline, supra; S. v. Sharpe, 132 Mo., 171; S. v. Deitrick, 51 Iowa, 469; S. v. Bryan, 34 Han., 72; Zabriskie v. State, 43 N. J. L., 644.

Second. Tbe seduction was shown both by tbe testimony of tbe prose-cutrix and tbe admission of tbe defendant and by tbe circumstances otherwise appearing in tbe case.

Third. This brings us to a consideration of tbe main contention of tbe defendant’s counsel, tbat there is no supporting testimony as to tbe promise of marriage.

It must be borne in mind tbat we are not passing upon tbe weight or strength of tbe evidence in any of these instances, but only upon tbe question whether there is any testimony which is supporting in tbe sense of tbat word as used in tbe statute. We are of tbe opinion tbat there is, and however unconvincing or inconclusive it may be, it was for tbe jury to determine its weight.

There was testimony in tbe case outside of tbe prosecutor’s, tbat is, her father’s and her mother’s, tbat tbe defendant bad been attentive to her for several years, coining to see her constantly for three years. Tbe mother testified: “He bad been going with her (Clara Moss) for about three years. He came nearly every Sunday and would stay all day. He *969would leave in the evening or at night, and would generally leave about dark or a little before.” The prosecutrix had testified that she was about 17 years old when defendant first courted her, which was about •one year and eight months before their first sexual act was committed, this being in September, 1913. That she then yielded to the defendant’s persuasion when he appealed to'her, on the faith of his promise of marriage and as her lover, to submit to his embraces. Her child was born in June, 1914. Defendant’s attentions to the prosecutrix lasted about three years and during that period he was frequently a visitor at her home and evinced a decided partiality for her, as the evidence, apart from hers, tended to show. In a case not unlike this one, though the supporting evdience was not so strong as that we h'ave here, the Court held that under the statute of that State the promise of marriage and the carnal connection were the essential facts to be shown (citing cases), and with reference to the kind of proof, which was supporting, within the meaning of the statute, and tended to establish those two essential facts, the court said in Armstrong v. People, 70 N. Y., 38, 44: “It is settled by the same authorities that the supporting evidence need be such only as the character of these matters admits of being furnished. The promise of marriage is not an agreement usually made in the presence or with the knowledge of third persons. Hence the supporting evidence possible in most eases is the subsequent admission or declaration of the party making it; or the circumstances which usually accompany the existence of an engagement of marriage, such as exclusive attention to the female on the part of the male, the seeking and keeping her society in preference to that of others of her sex, and all those facts of behavior towards her which before parties to an action were admitted as witnesses in it were given to a jury as proper matter for their consideration on that issue. So, too, the act of illicit connection, and the immediate persuasions and inducements which led to compliance, may not be proved by- the evidence of third persons directly to that fact. They are to be inferred from the facts; that the man had the opportunities, more or less frequent and continued, of making the advances and the proposition; and that the relations of the parties were such as that there was likely to be that confidence on the part of the woman in the assevera-tions of devotion on the part of the man, and that affection towards him personally, which would overcome the reluctance on her part, so long instilled as to have become natural, to surrender her chastity. Circumstances of this kind vary in weight in different cases, and it is for the jury to determine their strength. But when proof is made of the existence of them, in some degree, it cannot be said that there is no supporting evidence. A court cannot- then properly direct a verdict, or discharge the defendant in the indictment, on the ground that no case is made for the consideration of the jury. In the case in hand there was *970evidence of' tbe existence of both these classes of circumstances, furnished by witnesses other than the prosecutrix.” There was a dissenting opinion as to the sufficiency of the evidence to show the seduction, but it did not extend to the proof as to the promise of marriage. To the same effect as Armstrong v. People are the following cases: People v. Gumaer, 80 Hun., 78 (s. c., 30 N. Y. Suppl., 17); S. v. Mulholland, 115 Iowa, 170; S. v. McCaskey, 104 Mo., 644, citing S. v. Hill, 91 Mo., 423; S. v. Wycoff, 113 Iowa, 679; People v. Hubbard, 92 Mich., 322; S. v. Sharp, 132 Mo., 165. In S. v. Whatley, 144 Ala., 68, the Court said; “It was proper to permit the State to show how long the defendant kept company, with the witness. He was charged w-ith having seduced her upon a promise of marriage, and their relationship and conduct toward each other was a proper element for the consideration of the jury.” It appeared in S. v. Hill, supra, that the defendant had been waiting on the prosecutrix three or four years; that he and another had an oyster supper at her home; that she and defendant were in the kitchen together at night, after her parents had retired, and that defendant had been at the house several times previous to these occasions, and had paid her some attention on other occasions. The Court held with reference to these facts: “The prosecuting witness swears positively to a marriage promise made by defendant on the night they were in the kitchen; and we think the foregoing evidence is sufficient by way of corroborating circumstances. It is true, the visits of defendant were not frequent, and this evidence may all be true, and there have been no promise made to marry the girl, but the circumstances are such as usually attend such engagements. Whether they and the testimony of the prosecuting witness outweighed the positive denial of the defendant was a question for the jury to determine.” And it was held in S. v. Reinheimer, 109 Iowa, 624, that in a prosecution-for seduction the fact that the parties kept company and acted as lover’s usually do, and other like circumstances, are sufficient confirmation and support of the evidence of the prosecutrix required by the statute. The general principle is thus well stated in S. v. Timmens, 4 Minn., 241, 247: “It cannot be intended that by being corroborated the statute means that there shall be proof of these facts sufficient in itself to establish them independently of the testimony of the girl, as that would render the statute practically null. Parties seldom seek publicity in such matters. From their nature they transpire in secret, and it is only by accident that any positive proof can ever be brought to bear upon them except through the parties themselves. The corroboration, therefore, intended by' the statute is proof of those circumstances which usually form the concomitants of the main fact sought to be established, which circumstances should be sufficiently strong in themselves, and pertinent in their bearing upon the case, to *971satisfy tbe jury of tbe truthfulness of tbe witness in her testimony on the principal facts.” Tbe Court held in S. v. Andre, 5 Iowa, 389, that regular and frequent visits of tbe defendant to tbe female, and bis being alone with her at late hours of tbe night, and other equally significant facts, might be shown in support of her testimony in a prosecution of this kind. It is said in Underbill on Criminal Evidence, sec. 388, that “Tbe conduct and relations of tbe parties after, as well as before, tbe date of tbe alleged seduction may be shown, such evidence being-relevant to prove that consent was obtained by promise and inducements, and of ■g’hat they consisted.” Finally, in S. v. Curran, 51 Iowa, 112, 118, tbe Court, referring to this question, held: “Tbe evidence relied upon as corroborative is that tbe defendant was tbe prosecutrix’s suitor through a long period of time. Such fact, considered independently, would be entirely consistent with tbe defendant’s innocence. He claims, therefore, that it does not tend to connect him with tbe offense. In our opinion, tbe position is not well taken. In Stevenson v. Belknap, 6 Iowa, 97 (103), tbe Court said: ‘We believe that all authorities concur that seduction is generally made out by a train of circumstances, among which may be enumerated courtship, or continued attention for a length of time.’ See, also, S. v. Wells, 48 Iowa, 671. Courtship affords not simply tbe opportunity, but tbe very means of persuasion by which seduction is effected. Tbe testimony of tbe prosecutrix is sufficient to establish tbe fact of seduction. It is competent, though not sufficient, evidence that tbe defendant was her seducer. Tbe fact that be was her suitor, proven otherwise than by her own testimony, tends to make credible her testimony that her proven seduction was effected by him. Tbe corroboration, while by no means conclusive, must impress every one who has any knowledge of human nature as exceedingly cogent.” (See, also, McOlean Cr. Law, sec. 1119). But evidence of this character should not be considered as supporting unless tbe relations and tbe conduct and demeanor of tbe parties toward each other are such as to indicate that tbe man is tbe accepted lover of tbe woman, and tbe jury must find tbe fact whether, upon such evidence as supporting that of tbe prosecutrix, tbe promise of marriage was given and induced tbe seduction.

Tbe prosecutrix told her mother and father of tbe promise of marriage, and this, we have held, is corroboration of her as a witness. S. v. Whitley, 141 N. C., 823; S. v. Kincaid, 142 N. C., 657; S. v. Raynor, 145 N. C., 472. It is not by itself supporting testimony, as it emanates from tbe prosecutrix herself, but it is corroborative as in other cases.

We have carefully examined tbe charge of tbe court, and find that it states tbe law as declared by this Court and as applicable to tbe case.

No error.

*972Ci.ARK, O. J.,

concurring: Concurring fully in tbe opinion of tbe Court, I tbink it, however, well to call attention to tbe fact tbat our statute is less of protection to tbe woman probably tban in any other State.

Our statute makes criminal. “tbe seduction of an innocent, virtuous woman under promise of marriage,” with a proviso tbat “tbe unsupported testimony of tbe woman shall not be sufficient to convict.”

Seduction was declared a crime by a very early English statute, but in very few States is it required tbat tbe seduction “shall be under promise of marriage.” Clark’s Criminal Law (3 Ed.), see. 128; McClain Or. Law, secs. 1111, 1112; 35 Cyc., 1329. _ Tbe proposition often urged, tbat rape cannot be committed except upon a woman of virtuous character, has been justly repudiated in all tbe courts. It is not easy to see why it should be required as to tbe offense of seduction- Such requirement is not made as to the prosecutor in embezzlement, larceny, or any other offense against property, nor as to tbe party assaulted, whether killed, or in a charge of rape or any other offense against tbe person.

Tbe further' requirement, tbat “tbe unsupported testimony of tbe woman shall not be sufficient to convict,” is not required by our laws as to any other offense, and rarely in other jurisdictions. In 35 Cyc., 1360, it is said: “In a prosecution for seduction tbe testimony of tbe.female alone, without corroboration by other evidence, is sufficient, in tbe absence of a statute, to warrant a conviction,” citing People v. Wade, 118 Cal., 672; Washington v. State, 124 Ga., 423; S. v. Stone, 106 Mo., 1:

In this State tbe disadvantage to tbe woman has been carried much further by tbe judicial construction which requires tbe woman to be corroborated as to three distinct circumstances, and even throws upon her tbe burden of proving her character for virtue. In those few States where this last circumstance is subject of proof it is usually required that the defendant shall prove the bad character, and not that she shall prove her good character.

It was of this offense that John Philpot Curran, in Massy v. Headfort said: “The Cornish plunderer, intent on spoil, callous to every touch of humanity, shrouded in darkness, holds out .false lights to the tempest-tossed vessel and lures her and her pilot to that shore upon which she must be lost forever, the rock unseen, and nothing apparent but the treacherous signal of security and repose, until she is at length dashed upon that hard bosom where her honor and ha|>piness are wrecked forever, sinking before his eyes into an abyss of infamy, or, if any fragment escape, escaping to solace, to gratify, to enrich her vile destroyer.” The defendant here had courted his victim assiduously for three years, and then when brought to the bar to answer for his conduct he sum*973moned to bis aid all wbo would defame ber cbaracter and traduce ber virtue. Tbe burden was placed on ber to prove ber good cbaracter by preponderance of evidence over tbe assaults made upon it by one wbo for three years bad asserted bis devotion, and to convince tbe jury by other evidence than ber own, difficult as it is, because tbe law of North Carolina has asserted that tbe oath of a woman in such case is unworthy of belief, and ber testimony cannot be taken as true unless she is supported by other evidence.

In this State, as yet, women have no share in tbe government, and it may be that it is not unnatural that discrimination should be shown against them in this matter; but it has not escaped criticism by law writers and courts. There is no disposition in this Court to extend tbe discrimination, or make convictions more difficult in this than in all offenses. Tbe general rule is, as to all,offenses, that a witness is presumed to be of fair cbaracter, and that it is for tbe party wbo impeaches tbe credit of a witness to attack tbe testimony of tbe witness,' taking into consideration bis or ber interest in tbe matter and relation to tbe controversy and tbe parties to it, without any artificial requirement that tbe testimony of one witness shall not be sufficient if tbe jury shall believe it.