Willard Bartlett, J.:
On the 24th day of April, 1908, at a term of the Court of General Sessions held by the Hon. James T. Malohe, one of the judges thereof, the relator pleaded guilty to an indictment charging him with the crime of seduction under promise of ■marriage. The relator was thereupon remanded for sentence and subsequently, some time between that date and the 6th day of May following, he married the woman upon whose complaint the indictment had been found. This marriage took place with the approval and consent of the court. On May 6th, 1908, the court, being held by the same judge who had presided when the plea of guilty was received and who was advised of such marriage, suspended judgment and released the relator from custody. The relator and his wife thereafter lived together, but for how long a period does not appear. On Eeb. U, 1909, the suspension of sentence was revoked and the Court of General Sessions held by the same judge sentenced the relator to imprisonment in the State prison for a term of not less than four years and not more than four years and six months. He was committed to the custody of the agent and warden of the Sing Sing State Prison upon the judgment thus pronounced against him and while in such custody sued out the writ of habeas corpus in the present proceeding. Upon the return to the writ and a traverse thereof showing the facts substantially as they have been stated, the Supreme Court at Special Term denied the application for the discharge of the relator on the ground that he had mistaken his remedy which was by appeal to the Appellate Division and not by 'habeas corpus. All the judges of the Appellate Division agreed that the writ of habeas corpus was the proper remedy, but they disagreed as to the merits of the case—a majority refusing to hold that the marriage of the relator to the complainant before the actual rendition of judgment upon the indictment for seduction operated
as a bar and prevented the trial court from proceeding any further in the prosecution.
Section 284 of the Penal Code as in force at the time of the indictment (now § 2175 of the Penal Law) provided as follows :
“
A person who, under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character, is punishable by imprisonment for not more than five years, or by a fine of not more than one thousand dollars, or by both.” This enactment was qualified by section 285 of the Penal Code (Penal Law, § 2176) in the following words: “ The subsequent intermarriage of the parties, or the lapse of two years after the commission of the offense before the finding of an indictment, is a bar to a prosecution for a violation of the last section.”
These provisions of the Penal Code were derived from chapter 111 of the Laws of 1848, which provided as follows: “ Any man, who, shall under promise of marriage, seduce and have illicit connection with any unmarried female of previous chaste character, shall be guilty of a misdemeanor, and upon conviction shall be punished by imprisonment in a State prison not exceeding five years, or by imprisonment in a county jail not exceeding one year; provided that no conviction shall be had under the provisions of this act, on the testimony of the female seduced, unsupported by other evidence, nor unless indictment shall be found within two years after the commission of the offense; and provided further, that the subsequent marriage of the parties may be plead in bar of a conviction.” The language of the act of 1848 plainly implied that it was necessary that the defendant’s marriage with the seduced female must have taken place at such a time as would permit the fact to be pleaded. It manifestly contemplated the interposition of a plea setting up such marriage before the marriage could be regarded as a bar to further proceedings under the indictment.
The change in the phraseology of the enactment effected by the Penal Code indicates a change of purpose on the part of the legislature. It was no longer required that the fact of the subsequent marriage to the complainant should be pleaded. It was sufficient if it was proved in any manner to the satisfaction of the court. If this view is correct the only remaining question on the merits is whether the prosecution under an indictment is. concluded by a verdict or a plea of guilty, or must be carried on to judgment before it can be regarded as terminated. If the prosecution of the relator was not ended until judgment was actually rendered upon his plea of guilty, then his marriage operated as a bar to the rendition of judgment. Such seems to us the necessary meaning and effect of the statute. If the court before which he was arraigned for sentence was satisfied of his marriage to the complainant, it became its duty to discharge him from custody and proceed no further in the prosecution.
It is argued that this construction of the statute permits the defendant, under an' indictment for seduction under promise of mam age, to put a stop to the prosecution in the course of the trial by marrying the complainant whom he may, nevertheless, at once abandon and leave without his society or sup>port. That this may happen, and sometimes does happen in such cases, cannot be doubted; but we must interpret the statute as it is written, and in view of the ob-viou® purpose and intent of the legislature in enacting it. The idea which is the basis of all legislation of this sort—which is very common throughout the Union—is that the marriage of a seducer to a previously chaste woman whom he has induced to consent to have sexual intercourse with him under a promise to marry her, even when such marriage is entered into under the compulsion of the law, comes nearer to constituting reparation for the wrong which the man has done the woman than any other redress which can
be devised. In
Cheney v. Arnold
(15 N. Y. 345), Chief Judge Dbnio, referring to the act of 1848, speaks of the offense as being absolved by the subsequent marriage of the parties, saying that the legislature intended by this enactment to protect female purity. It is true that the marriage is only a partial atonement for the wrong inflicted; it does not wholly alleviate the mental anguish and social disgrace
(Eichar v.
Kistler, 14 Pa. St. 282). The lawmakers in their wisdom, however, have deemed it better for the woman to relieve the man from punishment if he marries her, and this even in view of the possibility that the marriage may be followed by immediate desertion. It is not for the courts to question the correctness of this view, and many reasons readily occur to the mind by which it may be sustained. In popular estimation the shame of the seduction is lessened to some extent by the fact of marriage—and to a very great extent where the parties, as sometimes happens, continue thereafter to live together in apparent amity. Another consideration of far-reaching importance is the effect of the marriage to render the afterborn offspring legitimate. Such legislation may readily be justified upon this ground alone.
Bearing in mind the purpose of the legislation as thus stated, it is apparent that such purpose may be effected just as well by the marriage of the defendant to the complainant at one stage-of the prosecution as at another.
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Willard Bartlett, J.:
On the 24th day of April, 1908, at a term of the Court of General Sessions held by the Hon. James T. Malohe, one of the judges thereof, the relator pleaded guilty to an indictment charging him with the crime of seduction under promise of ■marriage. The relator was thereupon remanded for sentence and subsequently, some time between that date and the 6th day of May following, he married the woman upon whose complaint the indictment had been found. This marriage took place with the approval and consent of the court. On May 6th, 1908, the court, being held by the same judge who had presided when the plea of guilty was received and who was advised of such marriage, suspended judgment and released the relator from custody. The relator and his wife thereafter lived together, but for how long a period does not appear. On Eeb. U, 1909, the suspension of sentence was revoked and the Court of General Sessions held by the same judge sentenced the relator to imprisonment in the State prison for a term of not less than four years and not more than four years and six months. He was committed to the custody of the agent and warden of the Sing Sing State Prison upon the judgment thus pronounced against him and while in such custody sued out the writ of habeas corpus in the present proceeding. Upon the return to the writ and a traverse thereof showing the facts substantially as they have been stated, the Supreme Court at Special Term denied the application for the discharge of the relator on the ground that he had mistaken his remedy which was by appeal to the Appellate Division and not by 'habeas corpus. All the judges of the Appellate Division agreed that the writ of habeas corpus was the proper remedy, but they disagreed as to the merits of the case—a majority refusing to hold that the marriage of the relator to the complainant before the actual rendition of judgment upon the indictment for seduction operated
as a bar and prevented the trial court from proceeding any further in the prosecution.
Section 284 of the Penal Code as in force at the time of the indictment (now § 2175 of the Penal Law) provided as follows :
“
A person who, under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character, is punishable by imprisonment for not more than five years, or by a fine of not more than one thousand dollars, or by both.” This enactment was qualified by section 285 of the Penal Code (Penal Law, § 2176) in the following words: “ The subsequent intermarriage of the parties, or the lapse of two years after the commission of the offense before the finding of an indictment, is a bar to a prosecution for a violation of the last section.”
These provisions of the Penal Code were derived from chapter 111 of the Laws of 1848, which provided as follows: “ Any man, who, shall under promise of marriage, seduce and have illicit connection with any unmarried female of previous chaste character, shall be guilty of a misdemeanor, and upon conviction shall be punished by imprisonment in a State prison not exceeding five years, or by imprisonment in a county jail not exceeding one year; provided that no conviction shall be had under the provisions of this act, on the testimony of the female seduced, unsupported by other evidence, nor unless indictment shall be found within two years after the commission of the offense; and provided further, that the subsequent marriage of the parties may be plead in bar of a conviction.” The language of the act of 1848 plainly implied that it was necessary that the defendant’s marriage with the seduced female must have taken place at such a time as would permit the fact to be pleaded. It manifestly contemplated the interposition of a plea setting up such marriage before the marriage could be regarded as a bar to further proceedings under the indictment.
The change in the phraseology of the enactment effected by the Penal Code indicates a change of purpose on the part of the legislature. It was no longer required that the fact of the subsequent marriage to the complainant should be pleaded. It was sufficient if it was proved in any manner to the satisfaction of the court. If this view is correct the only remaining question on the merits is whether the prosecution under an indictment is. concluded by a verdict or a plea of guilty, or must be carried on to judgment before it can be regarded as terminated. If the prosecution of the relator was not ended until judgment was actually rendered upon his plea of guilty, then his marriage operated as a bar to the rendition of judgment. Such seems to us the necessary meaning and effect of the statute. If the court before which he was arraigned for sentence was satisfied of his marriage to the complainant, it became its duty to discharge him from custody and proceed no further in the prosecution.
It is argued that this construction of the statute permits the defendant, under an' indictment for seduction under promise of mam age, to put a stop to the prosecution in the course of the trial by marrying the complainant whom he may, nevertheless, at once abandon and leave without his society or sup>port. That this may happen, and sometimes does happen in such cases, cannot be doubted; but we must interpret the statute as it is written, and in view of the ob-viou® purpose and intent of the legislature in enacting it. The idea which is the basis of all legislation of this sort—which is very common throughout the Union—is that the marriage of a seducer to a previously chaste woman whom he has induced to consent to have sexual intercourse with him under a promise to marry her, even when such marriage is entered into under the compulsion of the law, comes nearer to constituting reparation for the wrong which the man has done the woman than any other redress which can
be devised. In
Cheney v. Arnold
(15 N. Y. 345), Chief Judge Dbnio, referring to the act of 1848, speaks of the offense as being absolved by the subsequent marriage of the parties, saying that the legislature intended by this enactment to protect female purity. It is true that the marriage is only a partial atonement for the wrong inflicted; it does not wholly alleviate the mental anguish and social disgrace
(Eichar v.
Kistler, 14 Pa. St. 282). The lawmakers in their wisdom, however, have deemed it better for the woman to relieve the man from punishment if he marries her, and this even in view of the possibility that the marriage may be followed by immediate desertion. It is not for the courts to question the correctness of this view, and many reasons readily occur to the mind by which it may be sustained. In popular estimation the shame of the seduction is lessened to some extent by the fact of marriage—and to a very great extent where the parties, as sometimes happens, continue thereafter to live together in apparent amity. Another consideration of far-reaching importance is the effect of the marriage to render the afterborn offspring legitimate. Such legislation may readily be justified upon this ground alone.
Bearing in mind the purpose of the legislation as thus stated, it is apparent that such purpose may be effected just as well by the marriage of the defendant to the complainant at one stage-of the prosecution as at another. So long as the prosecution has not ended, the marriage brings the case within the express terms of the statute, and we think it constitutes a bar where, as here, it takes place at any time before judgment.
Being apprised of the fact of the relator’s marriage, it was error for the learned judge of the Court of General Sessions to pronounce judgment against him. The relator’s remedy was to move in arrest of judgment, and upon the denial of that motion, if it were denied, he could review the action of the trial court upon appeal. There was not, however, such an utter
lack of jurisdiction or power to pronounce judgment as entitled the relator to relief by habeas corpus. The Court of General Sessions had jurisdiction of the defendant and of the offense, and under the plea of guilty was empowered to pronounce the sentence which it did pronounce unless the fact of the defendant’s marriage to the complainant was established by competent proof. No one would think of questioning its jurisdiction to render the judgment if it had determined that no marriage had in fact taken place. The mere fact that the marriage is admitted in this habeas corpus proceeding cannot affect the question of the court’s jurisdiction. Under these circumstances we feel constrained to hold that the relator has mistaken his remedy and has not shown himself to be entitled to release by habeas corpus. As it does not appear that he made any motion in arrest of judgment, or, indeed, that he has taken any appeal, and as the time for an appeal must have expired, the case is obviously a proper one for the exercise of executive clemency under the view which we have taken as to the proper construction of the statute.
The order should be affirmed.