By the Court, Campbell, J.
The prisoner, Edgar Kenyon, was indicted at the Yates County Oyer and Terminer, and afterwards.tried at the Sessions in that county, and found guilty of the seduction, under promise of marriage, of one Mary Chissom, a young unmarried female, of sixteen years of age. He was indicted under an act passed by the legislature of this State in 1848, and entitled “An act to punish seduction as a crime.” There was an act passed in England, as far back as the reign of Henry VII, which made the forcible abduction and marriage or defilement of a woman a crime, provided the woman was an heiress. ■ That statute declared that any person should be deemed and punished as a felon who, for lucre, should take any woman, contrary to her will, and be married to her or defile her. If the first 'taking was against her will, it was still felony even if the subsequent marriage or defilement was with her consent. Still, the filthy lucre was the ground of offense. There could be no conviction unless, in addition to the woman, there was money in the case. It must appear that she had real or personal estate, or was an heir apparent.
Our statute was enacted for a higher and nobler purpose; not to prevent or to punish simply what was known commonly as the “ stealing of an heiress,” but, under threatened punishment, to prevent men from .stealing from young and confiding women, under the solemn promise of marriage, that which is often dearer to them than their money or even their life—their personal chastity. Hence, all that the act requires is that she shall be unmarried and of a “ previous chaste character.” What, then, is meant by the expression, “ a previous chaste character?” I answer, in the language of this court in this district, as expressed by Judge Welles, in Carpenter v. The People (8 Barb.): [286]*286“We think the words referred to do mean actual personal virtue; that the female must be actually chaste and pure in conduct and principle, up to the time-of the commission of the offense.” That case arose under another statute—a statute enacted for the punishment of those who abducted or seduced away females for the purpose of prostitution. It was enacted by the same legislature, and was emphatically a kindred statute. The precise phrase is used in both acts, and, manifestly, what is a correct interpretation of the expression in one act, would also be in the other. But that construction was approved in the 3d district, in the case, of Crozier v. The People (reported in 1 Park. Cr. R, 453) — a case which arose under the. statute which we are considering, and for violating which the prisoner was indicted and convicted. Then, following the language of Judge Parker, in the latter case, I should sayowith him, expressing the'-Views of the court in that district, “ Chastity is the general law of society. A want of chastity is the exception. It could only be impeached by showing acts of illicit intercourse.” It follows, that the offer on the part of the defendant to prove that the character of the witness and prosecutrix, Mary Chissom, for chastity, was, by general reputation, bad,, was properly, excluded. The question was, not what her reputation for chastity was, but what was her real, her actual character. Was she, in truth and in fact, a virtuous and chaste woman, or was she lewd and unchaste ? She had testified to her acquaintance with the defendant; his attention and courtship; his promise of marriage; the illicit intercourse with him; that no other person had addressed her as a suitor; that she was unmarried, and that she had never had sexual intercourse with any person other than the defendant, the prisoner at the bar. It Was competent for the defendant to show, if he could, that she was unchaste, and that others beside himself had had illicit intercourse with her. He called his and her companions, and by the testimony of Stephen Bennett and others sought to show that she was lascivious, but failed to satisfy the jury that she was not, in the language of the statute, of “ previous chaste character.” I am inclined- to think that the testimony given [287]*287by Bennett of his attempts upon her virtue, and of her resistance, would tend to satisfy the jury that she fell only when an avowed suitor offered his hand and made the sacred promise of marriage. But be that as it may, it is very clear to my mind that it was not by general reputation, but only by specific acts, that he could impeach her character for chastity. The offer was made, both in reference to her being a witness as well as prosecutrix. If the offer had been made as to both in distinct propositions, it still would have been rightly rejected.
It was expressly held in the late. Court of Errors, in Bakeman v. Rose and wife (18 Wend. R., 146), that evidence of general reputation that a female witness was a prostitute was inadmissible for the purpose of impeaching the witness. So, too, the offer to prove that from general reputation the house where Eliza Chissom lived, and who was the mother of Mary, and with whom Mary lived, was a house of ill fame, was properly rejected and the evidence excluded. If true, it was a fact which could be proved by specific acts also. The general rule undoubtedly is, that hearsay evidence is incompetent to establish any specific fact which is in its nature susceptible of being proved by witnesses who speak, from their own knowledge. If this house was the home of lewd women, and the resort of unprincipled men, and was in truth a house of prostitution, it would very, evidently have been in the power of the defendant, who was a frequent visitor there, to have made proof of specific facts tending to show its real character; but he could not-show it by general reputation. (See note to 1 Phil. Ev., Cow. & Hill’s Notes, note 432.)
I have thus considered one of the provisions of the act — that which requires the female to be of chaste character, as it became necessary to do so in connection with the offer of proof made by the defendant. But the objections made and exceptions taken by the defendant on the trial, were so numerous, and directed to every provision of the statute, that it becomes necessary to refer to them all somewhat in detail. Beferring, then, again to the language of the act, “ Any man who shall, under promise of marriage, seduce and have illicit connection [288]*288with any unmarried female of previous chaste character, shall be guilty of a misdemeanor,” &c., “ provided that no convic; tion shall be had under the provisions of this act on the testimony of the female seduced, unsupported by other evidence." It may be well to bear in mind that there is a marked difference between testimony and evidence. The latter is much more comprehensive than the former—testimony being the statements or the declarations of a witness, and evidence being rather the result or .deduction from all the facts established, whether by testimony, -byv events or by circumstances, by writings, records or other memorials. It is called evidence, saith Ooke, because thereby the point in issue in a cause to be tried is to be made evident to the jury, and the evidence to a jury containeth testimony of witnesses and all other proofs to be given and produced to a jury for the finding of any issue joined between parties. (See Jacobs' Law Dictionary, Title, “ Dvidence.")
Now, in the act we. are considering, the testimony of the female seduced must be supported by other evidence.
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By the Court, Campbell, J.
The prisoner, Edgar Kenyon, was indicted at the Yates County Oyer and Terminer, and afterwards.tried at the Sessions in that county, and found guilty of the seduction, under promise of marriage, of one Mary Chissom, a young unmarried female, of sixteen years of age. He was indicted under an act passed by the legislature of this State in 1848, and entitled “An act to punish seduction as a crime.” There was an act passed in England, as far back as the reign of Henry VII, which made the forcible abduction and marriage or defilement of a woman a crime, provided the woman was an heiress. ■ That statute declared that any person should be deemed and punished as a felon who, for lucre, should take any woman, contrary to her will, and be married to her or defile her. If the first 'taking was against her will, it was still felony even if the subsequent marriage or defilement was with her consent. Still, the filthy lucre was the ground of offense. There could be no conviction unless, in addition to the woman, there was money in the case. It must appear that she had real or personal estate, or was an heir apparent.
Our statute was enacted for a higher and nobler purpose; not to prevent or to punish simply what was known commonly as the “ stealing of an heiress,” but, under threatened punishment, to prevent men from .stealing from young and confiding women, under the solemn promise of marriage, that which is often dearer to them than their money or even their life—their personal chastity. Hence, all that the act requires is that she shall be unmarried and of a “ previous chaste character.” What, then, is meant by the expression, “ a previous chaste character?” I answer, in the language of this court in this district, as expressed by Judge Welles, in Carpenter v. The People (8 Barb.): [286]*286“We think the words referred to do mean actual personal virtue; that the female must be actually chaste and pure in conduct and principle, up to the time-of the commission of the offense.” That case arose under another statute—a statute enacted for the punishment of those who abducted or seduced away females for the purpose of prostitution. It was enacted by the same legislature, and was emphatically a kindred statute. The precise phrase is used in both acts, and, manifestly, what is a correct interpretation of the expression in one act, would also be in the other. But that construction was approved in the 3d district, in the case, of Crozier v. The People (reported in 1 Park. Cr. R, 453) — a case which arose under the. statute which we are considering, and for violating which the prisoner was indicted and convicted. Then, following the language of Judge Parker, in the latter case, I should sayowith him, expressing the'-Views of the court in that district, “ Chastity is the general law of society. A want of chastity is the exception. It could only be impeached by showing acts of illicit intercourse.” It follows, that the offer on the part of the defendant to prove that the character of the witness and prosecutrix, Mary Chissom, for chastity, was, by general reputation, bad,, was properly, excluded. The question was, not what her reputation for chastity was, but what was her real, her actual character. Was she, in truth and in fact, a virtuous and chaste woman, or was she lewd and unchaste ? She had testified to her acquaintance with the defendant; his attention and courtship; his promise of marriage; the illicit intercourse with him; that no other person had addressed her as a suitor; that she was unmarried, and that she had never had sexual intercourse with any person other than the defendant, the prisoner at the bar. It Was competent for the defendant to show, if he could, that she was unchaste, and that others beside himself had had illicit intercourse with her. He called his and her companions, and by the testimony of Stephen Bennett and others sought to show that she was lascivious, but failed to satisfy the jury that she was not, in the language of the statute, of “ previous chaste character.” I am inclined- to think that the testimony given [287]*287by Bennett of his attempts upon her virtue, and of her resistance, would tend to satisfy the jury that she fell only when an avowed suitor offered his hand and made the sacred promise of marriage. But be that as it may, it is very clear to my mind that it was not by general reputation, but only by specific acts, that he could impeach her character for chastity. The offer was made, both in reference to her being a witness as well as prosecutrix. If the offer had been made as to both in distinct propositions, it still would have been rightly rejected.
It was expressly held in the late. Court of Errors, in Bakeman v. Rose and wife (18 Wend. R., 146), that evidence of general reputation that a female witness was a prostitute was inadmissible for the purpose of impeaching the witness. So, too, the offer to prove that from general reputation the house where Eliza Chissom lived, and who was the mother of Mary, and with whom Mary lived, was a house of ill fame, was properly rejected and the evidence excluded. If true, it was a fact which could be proved by specific acts also. The general rule undoubtedly is, that hearsay evidence is incompetent to establish any specific fact which is in its nature susceptible of being proved by witnesses who speak, from their own knowledge. If this house was the home of lewd women, and the resort of unprincipled men, and was in truth a house of prostitution, it would very, evidently have been in the power of the defendant, who was a frequent visitor there, to have made proof of specific facts tending to show its real character; but he could not-show it by general reputation. (See note to 1 Phil. Ev., Cow. & Hill’s Notes, note 432.)
I have thus considered one of the provisions of the act — that which requires the female to be of chaste character, as it became necessary to do so in connection with the offer of proof made by the defendant. But the objections made and exceptions taken by the defendant on the trial, were so numerous, and directed to every provision of the statute, that it becomes necessary to refer to them all somewhat in detail. Beferring, then, again to the language of the act, “ Any man who shall, under promise of marriage, seduce and have illicit connection [288]*288with any unmarried female of previous chaste character, shall be guilty of a misdemeanor,” &c., “ provided that no convic; tion shall be had under the provisions of this act on the testimony of the female seduced, unsupported by other evidence." It may be well to bear in mind that there is a marked difference between testimony and evidence. The latter is much more comprehensive than the former—testimony being the statements or the declarations of a witness, and evidence being rather the result or .deduction from all the facts established, whether by testimony, -byv events or by circumstances, by writings, records or other memorials. It is called evidence, saith Ooke, because thereby the point in issue in a cause to be tried is to be made evident to the jury, and the evidence to a jury containeth testimony of witnesses and all other proofs to be given and produced to a jury for the finding of any issue joined between parties. (See Jacobs' Law Dictionary, Title, “ Dvidence.")
Now, in the act we. are considering, the testimony of the female seduced must be supported by other evidence. Not necessarily the testimony of another witness, as in our statute relating to the crime of treason, where it is required that there shall be the testimony of two lawful witnesses to the same overt act, but other evidence besides the testimony of her upon whom the wrong was inflicted. Proceeding, then, with the provisions of this act, the first of which is, that “ any man who shall,” &c. Even upon this phrase the defendant raised the question of the sufficiency of the proof to convict, as it did not appear by any proof that he was a man. He was in court, present before the jury, and not sued upon a promise to marry, but charged with a crime. If he was old enough to be, and was; the father of the child begotten upon the body of the prosecutrix, under a promise of marriage, I apprehend there can be no doubt that he was a man within the meaning' of the statute, and old enough to be punished for the crime. This objection can hardly require any serious discussion.
The female seduced must be an unmarried female. In her testimony in this case, she states distinctly and positively that [289]*289she was unmarried. Is it necessary that in this she should be supported ? I think not. On the contrary, if the female were married, in almost every case it would be a fact capable of direct proof. But, in the case before us, the female is supported. It appears by evidence other than her testimony, that she was’a young woman — perhaps a better expression would be, a girl-—living at home with her mother, scarcely fifteen years of age when the defendant commenced visiting her, and that she was born and had always resided in the same neighborhood. It appears that, on the trial, there must have been • present many of her companions, those- who would have known if she had been married. The People could not well prove a negative, that is, that she was not married, except by her own testimony. From her testimony and all the surrounding circumstances, was it not evident to the jury that she was an unmarried female ? Again, the seduction must be effected under a promise of marriage, and the defendant contends that that promise must be mutual. Conceding this, we may still inquire what is meant by mutual promises to marry. If a man, having paid his addresses to a woman, makes to her an offer of marriage, that is, simply offers to marry her, and she says in reply that she accepts his offer, would not the law imply the promises ? In this case, the testimony of the prosecutrix is that the defendant said to her, if she would do so and so, he would marry her, that is, if she would have connection with him. At first she said no, sir; but afterward she assented. In other words, she accepted his offer of marriage. That she so understood it, is evident from her answer to the question as to what influence the promise of marriage had upon her by way Of inducement to her to consent to the intercourse. She says : “I thought he was going to have me, and nobody would know it.” If he was to have .her, she must have understood that she was to marry him. As to the support by other evidence, it appears that the defendant was a frequent visitor at her mother’s house, that he waited on her to balls and parties, and took her out frequently to ride, and when the mother spoke to him about keeping company with [290]*290her daughter, he said his motives were good. Surely there was evidence tending to show to the jury that there may well have been a promise of marriage. The mother may have well supposed, from his declarations, that his motives were good; that he was addressing her daughter with honorable intentions, and with a view to marriage.
As to the illicit connection, the fact stands out that the prosecutrix was delivered of a child, and the whole case shows evidence on both sides that there was abundant opportunity for the defendant to have become the father of it, if there were such promises as she has sworn to. The act under which the defendant was convicted does not require that the female shall be supported in every particular, nor even in every important particular. The language is, “ unsupported by other evidence.” Undoubtedly, in the main features of the case, as to the important points, she should be supported. How direct and how positive, and conclusive the supporting evidence should be, is quite another question. In administering such a law, I apprehend no precise rule can be laid down. Each case will be governed, in a great measure, by its own particular circumstances. I have gone carefully over this case. The charge of the county judge was able and elaborate, and, I think,' entirely fair and impartial. I do not think, in his charge, or in his refusal to charge, he committed any error in the admission or rejection of evidence. ■ •
In my judgment; there is no sufficient ground for a new trial.
Conviction affirmed.