Sherwood, J.
The defendant was indicted under section 1259, Revised Statutes, for the seduction of Sarah Loe, and on trial had was convicted and his punishment assessed at two years in the penitentiary. He had been previously tried on the same indictment and found guilty, and his punishment assessed at a fine of four hundred dollars and one day’s imprisonment in the county jail, but on his motion for a new trial this verdict was set aside on the ground of the insufficiency of the evidence ; and on the second trial he interposed the plea of once in jeopardy, to which the state demurred and the plea wa's held bad.
I. There was no error committed touching this plea. Section twenty-three, article two, of our Bill of Rights does not embrace a case of this kind. If a xoerson be acquitted by a jury he could not again for the same offence be j)laced upon trial; for this would be to X3ut him “in jeoj)arcly ” within the direct terms of the constitution ; but where, as here, the defendant moved for a new trial, he “ may again be put upon trial upon the same facts before charged against him, and the proceedings had will constitute no protection.” Cooley’s Const. Lim. 327-8 ; State v. Hayes, 78 Mo. 600.
II. It was error to permit the state to cross-examine the defendant as to matters not testified to bjr him in chief. The statute on this point (sec. 1918) is very plain and the rulings of this court on the j>oint have been so [91]*91frequent that it would seem that a very little attention on the part of trial courts would prevent the necessity of our ruling the point any more. State v. Porter, 75 Mo. 171; State v. McGraw, 74 Mo. 573 ; State v. Turner, 76 Mo. 351 ; State v. McLaughlin, Id. 324 ; State v. Douglass, 81 Mo. 231.
III. A more important point is now to be discussed ; it is this : whether the defendant should have 'been permitted to show that prior to the time the alleged seduction took place, which, it seems, was in May, 1880, the prosecutrix had been guilty of acts of lewdness and unchastity with other men than the defendant. In cases of rape the point of the admissibility of evidence, of specific acts of unchastity on the part of the prosecutrix, occurring with other men prior to the one charged in the indictment, has not met with a uniformity of ruling. I here collate some of the authorities which deny the admissibility of such evidence: Rex v. Hodgson, Russ. & Ry. Cr. Cas. 211; Rex v. Clark, 2 Stark. Rep. 241 ; Reg. v. Holmes, 12 Cox C. C. 137 ; Pleasant v. State, 15 Ark. 624; State v. Jefferson, 6 Ired. 305 ; State v. Forshner, 43 N. H. 89 ; State v. Knapp, 45 Ib. 148 ; People v. Jackson, 3 Parker C. R. 391. Affirming the admissibility of such evidence, among others, are : Rex v. Barker, 3 Carr. & P. 589 ; Rex v. Martin, 6 Ib. 562 ; Reg. v. Robbins, 2 Mood. & R. 14; People v. Abbott, 19 Wend. 192 ; State v. Benson, 6 Cal. 221; State v. Johnson, 28 Vt. 512; State v. Reed, 39 Vt. 417; State v. Murray, 63 N. C. 31; Sherwin v. People, 69 Ill. 55; Strang v. People, 24 Mich. 1.
The opinion of Judge Cowen in People v. Abbott, supra, which affirms the admissibility of evidence of particular acts of unchastity in cases of rape, is a very able one, reviewing the authorities then extant on the subject. That case has been criticised, but it has been frequently followed, and the ideas it embodies are fast gaining ground, as shown by some of the recent citations [92]*92I have made. The reasoning of that oase I have never seen answered, nor do I believe it can be. I have cited it, as well as others of like sort, because believing that authorities which recognize the rule in cases'.of that character sanction similar evidence in cases like the one under discussion. In short, that wherever by the nature of the proceeding, or the character of the prosecution, the chastity of the prosecutrix is brought inth question any evidence which tends to impeach her chastity ; to render it less probable that she was ravished in the one case or seduced and debauched in the other, is competent and relevant, whether consisting of evidence o'f her general reputation or of evidence of specific acts of lewdness or unchastity. And authorities are not wanting in support of this position, when the prosecution is for the offence with which the defendant in this instance stands charged.
The language of section 1259, supra, so far as perti-' pent here, is : “If any person shall, under promise of marriage, seduce and debauch any unmarried female of good repute,” etc.; and “In trials for seduction under promise of marriage the evidence of the woman as to such promise must be corroborated to the same extent required of the principal witness in perjury.” Sec. 1912. In Michigan, the statute in relation to seduction reads : “If any man shall seduce and debauch any unmarried woman he shall be punished,” etc. And in that state it has been ruled under that statute, that the chastity of the prosecutrix, previous to the alleged offence, is in all cases involved, and that evidence, even elicited from her Own cross-examination is competent to prove illicit connection with another man. People v. Clark, 33 Mich. 112. Marston, J., in that case remarking: “Illicit intercourse alone would not constitute the offence charged. In addition to this, the complainant relying on some sufficient promise or inducement and without which she would not have yielded, must have been drawn aside [93]*93from the path of virtue she was honestly pursuing at the time the offence charged was committed. * * * The object of this statute was not to punish illicit coJiabitation. Its object was to punish the seducer, who, by his arts and persuasions, prevails over the chastity of an unmarried woman, and who thus draws her aside from the path of duty and rectitude she was pursuing. If, however, she had already fallen and was not at the time pursuing this path, but willingly submitted to his embraces as opportunity offered, the mere fact of a promise made at the time would not make the act seduction. Nor will intercourse which takes place in consequence of and reliance upon a promise made, make the act seduction. If this were so, then the common prostitute, who is willing to sell her person to any man, might after-wards make the act seduction by proving that she yielded, relying upon the promise of compensation made her by the man, and without which she would not have submitted to his embraces. Illicit intercourse, in reliance on a promise made, is not sufficient, therefore, to make the act seduction.
“Thenature of the promise, and the previous characi ter of the woman as to chastity, must be considered. Inmost of the states, their statute makes the seduction of a woman of ‘ previous chaste character ’ an indictable offence, while there are no such words, nor any of like import in ours, and the courts have held that the words,’ i previous chaste character,’ mean that she shall possess' actual personal virtue, in distinction from a good reputation, and that a single act of illicit connection may, therefore, be shown on behalf of defendant. If, how-1, ever, we are correct in what we have already said upon the question as to what is necessary to make an act of illicit intercourse, seduction, then the chastity of the fe: male, at the time of the alleged act, is in all cases involved,
Free access — add to your briefcase to read the full text and ask questions with AI
Sherwood, J.
The defendant was indicted under section 1259, Revised Statutes, for the seduction of Sarah Loe, and on trial had was convicted and his punishment assessed at two years in the penitentiary. He had been previously tried on the same indictment and found guilty, and his punishment assessed at a fine of four hundred dollars and one day’s imprisonment in the county jail, but on his motion for a new trial this verdict was set aside on the ground of the insufficiency of the evidence ; and on the second trial he interposed the plea of once in jeopardy, to which the state demurred and the plea wa's held bad.
I. There was no error committed touching this plea. Section twenty-three, article two, of our Bill of Rights does not embrace a case of this kind. If a xoerson be acquitted by a jury he could not again for the same offence be j)laced upon trial; for this would be to X3ut him “in jeoj)arcly ” within the direct terms of the constitution ; but where, as here, the defendant moved for a new trial, he “ may again be put upon trial upon the same facts before charged against him, and the proceedings had will constitute no protection.” Cooley’s Const. Lim. 327-8 ; State v. Hayes, 78 Mo. 600.
II. It was error to permit the state to cross-examine the defendant as to matters not testified to bjr him in chief. The statute on this point (sec. 1918) is very plain and the rulings of this court on the j>oint have been so [91]*91frequent that it would seem that a very little attention on the part of trial courts would prevent the necessity of our ruling the point any more. State v. Porter, 75 Mo. 171; State v. McGraw, 74 Mo. 573 ; State v. Turner, 76 Mo. 351 ; State v. McLaughlin, Id. 324 ; State v. Douglass, 81 Mo. 231.
III. A more important point is now to be discussed ; it is this : whether the defendant should have 'been permitted to show that prior to the time the alleged seduction took place, which, it seems, was in May, 1880, the prosecutrix had been guilty of acts of lewdness and unchastity with other men than the defendant. In cases of rape the point of the admissibility of evidence, of specific acts of unchastity on the part of the prosecutrix, occurring with other men prior to the one charged in the indictment, has not met with a uniformity of ruling. I here collate some of the authorities which deny the admissibility of such evidence: Rex v. Hodgson, Russ. & Ry. Cr. Cas. 211; Rex v. Clark, 2 Stark. Rep. 241 ; Reg. v. Holmes, 12 Cox C. C. 137 ; Pleasant v. State, 15 Ark. 624; State v. Jefferson, 6 Ired. 305 ; State v. Forshner, 43 N. H. 89 ; State v. Knapp, 45 Ib. 148 ; People v. Jackson, 3 Parker C. R. 391. Affirming the admissibility of such evidence, among others, are : Rex v. Barker, 3 Carr. & P. 589 ; Rex v. Martin, 6 Ib. 562 ; Reg. v. Robbins, 2 Mood. & R. 14; People v. Abbott, 19 Wend. 192 ; State v. Benson, 6 Cal. 221; State v. Johnson, 28 Vt. 512; State v. Reed, 39 Vt. 417; State v. Murray, 63 N. C. 31; Sherwin v. People, 69 Ill. 55; Strang v. People, 24 Mich. 1.
The opinion of Judge Cowen in People v. Abbott, supra, which affirms the admissibility of evidence of particular acts of unchastity in cases of rape, is a very able one, reviewing the authorities then extant on the subject. That case has been criticised, but it has been frequently followed, and the ideas it embodies are fast gaining ground, as shown by some of the recent citations [92]*92I have made. The reasoning of that oase I have never seen answered, nor do I believe it can be. I have cited it, as well as others of like sort, because believing that authorities which recognize the rule in cases'.of that character sanction similar evidence in cases like the one under discussion. In short, that wherever by the nature of the proceeding, or the character of the prosecution, the chastity of the prosecutrix is brought inth question any evidence which tends to impeach her chastity ; to render it less probable that she was ravished in the one case or seduced and debauched in the other, is competent and relevant, whether consisting of evidence o'f her general reputation or of evidence of specific acts of lewdness or unchastity. And authorities are not wanting in support of this position, when the prosecution is for the offence with which the defendant in this instance stands charged.
The language of section 1259, supra, so far as perti-' pent here, is : “If any person shall, under promise of marriage, seduce and debauch any unmarried female of good repute,” etc.; and “In trials for seduction under promise of marriage the evidence of the woman as to such promise must be corroborated to the same extent required of the principal witness in perjury.” Sec. 1912. In Michigan, the statute in relation to seduction reads : “If any man shall seduce and debauch any unmarried woman he shall be punished,” etc. And in that state it has been ruled under that statute, that the chastity of the prosecutrix, previous to the alleged offence, is in all cases involved, and that evidence, even elicited from her Own cross-examination is competent to prove illicit connection with another man. People v. Clark, 33 Mich. 112. Marston, J., in that case remarking: “Illicit intercourse alone would not constitute the offence charged. In addition to this, the complainant relying on some sufficient promise or inducement and without which she would not have yielded, must have been drawn aside [93]*93from the path of virtue she was honestly pursuing at the time the offence charged was committed. * * * The object of this statute was not to punish illicit coJiabitation. Its object was to punish the seducer, who, by his arts and persuasions, prevails over the chastity of an unmarried woman, and who thus draws her aside from the path of duty and rectitude she was pursuing. If, however, she had already fallen and was not at the time pursuing this path, but willingly submitted to his embraces as opportunity offered, the mere fact of a promise made at the time would not make the act seduction. Nor will intercourse which takes place in consequence of and reliance upon a promise made, make the act seduction. If this were so, then the common prostitute, who is willing to sell her person to any man, might after-wards make the act seduction by proving that she yielded, relying upon the promise of compensation made her by the man, and without which she would not have submitted to his embraces. Illicit intercourse, in reliance on a promise made, is not sufficient, therefore, to make the act seduction.
“Thenature of the promise, and the previous characi ter of the woman as to chastity, must be considered. Inmost of the states, their statute makes the seduction of a woman of ‘ previous chaste character ’ an indictable offence, while there are no such words, nor any of like import in ours, and the courts have held that the words,’ i previous chaste character,’ mean that she shall possess' actual personal virtue, in distinction from a good reputation, and that a single act of illicit connection may, therefore, be shown on behalf of defendant. If, how-1, ever, we are correct in what we have already said upon the question as to what is necessary to make an act of illicit intercourse, seduction, then the chastity of the fe: male, at the time of the alleged act, is in all cases involved, and the presumption of law being in favor of chastity, the defence have a right- to show the contrary < [94]*94This, upon principle, then, we consider the correct doctrine, and that it necessarily follows from what we have said upon the other question.” •
In another case in that state, testimony of other men was held competent to show that they had illicit sexual acts with the prosecutrix prior to the time of the alleged seduction ; provided there was no unwillingness on their part to testify. People v. Brewer, 27 Mich. 134. The statute on this subject in Pennsylvania very closely resembles ours : “ The seduction of any female of good repute under twenty-one years of age with illicit connection, under promise of marriage,” etc. Under that statute it has been ruled that to constitute the offence therein mentioned, there must be illicit connection, and the female must be drawn aside from the path of virtue which she was honestly pursuing. Commonwealth v. McCarty, 2 Clark, 135. Lewis, P. J., in that case said : “To constitute the offence * * * several ingredients are requisite. Of these, in their order : 1. Seduction. This is to corrupt, to deceive, to draw aside from the right path. Every illicit connection is not seduction. It cannot be said that she was drawn aside from the path of virtue unless she was honestly pursuing that path when the defendant approached her. If she was vile and corrupt, at the time, and submitted herself to improper practices from her own lustful propensities, and without any arts of his, he is not her seducer. If Joseph had submitted to the solicitations of Potiphar’s wife, although he might have been guilty, with her, of the crime of adultery, he could not ha re been justly charged with that of seduction. * * * But the unrepenting and unreformed prostitute is not a being upon whom this offence can be committed, and is not the object intended to be protected by the provisions of this act of assembly. In the process of seduction the affections of the female are gained,' her mind and morals polluted, lewd thoughts are inculcated, but in order to [95]*95complete the offence, under the act of assembly, it is necessary that there should be-illicit connection. This is the final consummation of the crime which brings it under the cognizance of human law. * * * It is necessary that the female should be of £ good repute.’ It is possible for a female to enjoy a good reputation without deserving it, and it is often the case that a bad reputation is acquired by imprudent behavior not amounting to positive crime. In the first case it has already been shown that one of dishonest disposition, ever ready to. yield to the solicitations of vice, is not a person upon whom this offence can be committed. In the latter case it is not material in the consideration of this question whether she acquires a bad reputation by imprudence or by crime. * * * It is seduction £ under promise of marriage ’ which is made indictable by this act of assembly. It must appear to the satisfaction of the jury that the seduction was accomplished by means of a promise of marriage. Seduction by any other means does not fall within the condemnation of the act.”
These remarks I regard as an admirable analysis, not only of the- statute of Pennsylvania, but also of our own statute.
Our statute is worded a little differently, but in substance and effect is the same and possesses the same essential elements. Now, if it be true, as is clearly deducible from the foregoing authorities, that the word, “seduce,” ex m termini, implies chastity as a condition precedent on which the act of seduction is to operate, resulting in the end in debauchment, the physical deprivation of chastity as the consummation of the crime, against which our statute is leveled, I am unable to discern any material difference between that statute and those of other states, where the language is: “ Any man who shall, under promise of marriage, seduce and have illicit connection with any unmarried female of previous [96]*96chaste character,” etc. Stat. of N. Y. . “If any person seduce and debauch any unmarried woman of previously chaste character,” etc. • Stat. of Iowa. For I do not see how the words, “previous chaste character,” are specially significant, if full force be given to the word, “seduce," which bears with it in this instance as its own intrinsic and inseparable meaning the idea of destroyed chastity. “The word, '■seduce,' though a general term,' and having a variety of meanings, according to the subject to which it is applied, has, when it is used with reference to the conduct of a man towards a female, a precise and determinate signification, and is universally understood to mean an enticement of her on his part to the surrender of her chastity by means of some art, ¡influence, promise or deception calculated to accomplish that object, and to include the yielding of her person to him, as much as if it was expressly stated.” State v. Bierce, 27 Conn. 319 ; Dinkey v. Commonwealth, 17 Pa. St. 126. How can that he destroyed hy the seducer's insidious wiles and arts which at the time of its supposed destruction had no existence f Any evidence, therefore, which shows, or materially tends to show that there was, at the time the alleged offence is charged to have been, committed, no chastity, in the given case cannot be-’ otherwise than competent and relevant. How better can you establish this fact th.an by specific acts of unchastity % Is it not the highest and best evidence of the fact1 in issue, and will not one of the most hackneyed rules of' evidence apply as well here as in innumerable other cases of daily occurrence % Evidence of prior specific acts of unchastity with the defendant himself is now univer- ; sally received, as well in cases of seduction as in cases' of rape. What for % To show that in the latter class of ’ cases there was less likelihood of absence of consent; ’ and that in the former, in consequence of a prior act of , the defendant, there was n'o chastity left to seduce. Can. it be-material-by whom the prior act be performed, [97]*97whether by the defendant-, or whether by any one else ? Is it any the less seduction because Jones is the seducer instead of the defendant, Smith ? If in any civil or criminal trial where Smith is defendant I offer evidence showing a prior specific act of Jones which rendered the subsequent act of defendant, Smith, morally as well as physically impossible, will any court in Christendom reject the proffered, evidence ?
But it is said by some of the authorities in cases of rape and seduction, the prosecutrix comes prepared to defend her general reputation for chastity, but not pre- - pared to defend against charges of prior particular acts. Why, then, admit evidence of such acts with the defendant himself ? Is the prosecutrix any the better prepared against evidence of such acts on his part than on the part of others ? Does she not, by coming on the witness stand, declare her chastity, assert that at the time of the alleged offence she was possessed of that of which the defendant deprived her, and thus committed the of-fence? Is it not “the gravamen'1'’ of the state’s com-, plaint that a pure and chaste female has been rendered impure and unchaste by the seduction and illicit connection of the defendant ? West v. State, 1 Wis. 209. This being so, is it not illogical in the extreme to admit evidence of particular acts on the part of A, going . to show the moral and physical impossibility of a crime . having been committed, and yet deny and repudiate evidence of a-similar import on the part of B ? Where, in all the annals and precedents of jurisprudence, can sim- . ilar instances of inconsistency be found? But whether . the prosecutrix be better prepared, on the score of her general reputation for chastity, than on the score of particular acts, should not be allowed to prejudice a defendant’s cause and sacrifice his life or his liberty, on the altar of an absurd technicality. In Shirwin v. People, 69 Ill. 55, where the prosecution was for rape, and the. [98]*98'question was whether evidence was admissible as to prior .•sexual acts with other men, it was ruled admissible, and .it was there said: “ The right of the accused to defend must be as broad as that of the prosecution to >criminate.”
If I have been correct as to what is meant by our statute, as to what is necessarily implied by the words, useduce and debauch ” — and in this, I think the authorities I have cited, as well as sound reason, fully support me — if chastity is the sine qua non of the offence of seduction, then the authorities in the states of New York and Iowa, whose statutes I have quoted, abundantly uphold the position, that in cases like the present you may show in defence that prior to the offence charged the prosecutrix was. guilty with other men. State v. Sutherland, 30 Iowa, 570 ; State v. Shean, 32 Ib. 88; Kenyon v. People, 26 N. Y. 203.
I am further supported in the position taken by adjudications in the state of Georgia. Thus, in Wood v. State, 48 Ga. 192, and Mann v. State, 34 Ga. 1, where the statute reads: “ Any person, who, by persuasion and promise of marriage, or by other false and fraudulent means, shall seduce a virtuous unmarried female,” etc., and it was there held admissible, in prosecutions under that statute, to introduce in defence evidence which fell short of actual sexual guilt, but showed that the prosecutrix was corrupt in morals and unchaste in mind prior to the offence charged, and, therefore, could not have been seduced, corrupted or drawn aside from the path of virtue. If the deductions I have made from the statute, when reasoning upon it and the authorities cited, be not the correct one, then, as no corroborating evidence except as to the promise of marriage is re- • quired, it will be in the power of some designing woman ■of ugood repute,” one who has never worn the “scarlet letter,” though in habit and at heart a harlot, to inveigle, by her fascinations, any one into a promise of [99]*99marriage in the presence or hearing of some convenient witness, and then by her own unaided, uncorroborated ■oath, prove the falsehood of seduction, and then give him the wretched alternative of wedlock with her in all her vileness, or else the fate and infamy of a felon ! 1 •cannot believe that the legislative protection, intended ■only for the pure and innocent in heart, was designed to be extended over those who, being vile and impure, have nothing left for the law to guard.
I must, therefore, hesitate very long before accepting any other conclusion than the one already announced. And in view of our stringent statutory provisions, and of the ease with which the mere fact of seduction can be established, the admonition of Lord Hale in respect of another sexual offence, is equally applicable to the crime under discussion. Indeed, there are many circumstances incident to the crime of rape which strongly tend to corroborate the prosecutrix, while here, the crime, according to its definition, being secret and by consent, there is, under our statute, no corroboration either asked or necessary.
Counsel for the state cite Bowers v. State, 29 Ohio St. 512, as being in opposition to the views already advanced. The statute of that state is a peculiar one. It reads: “That any person over the age of eighteen years who, under promise of marriage, shall have illicit carnal intercourse with any female of good repute for. chastity, under the age of eighteen years, shall be deemed guilty of seduction.” It is quite plain that this statute differs materially from ours ; because an act of simple fornication, without any of the seducer’s arts ■being practiced, without the female being drawn .aside from the path of virtue, makes the accused guilty of what might be not inaptly termed statutory seduction. Under that statute, the seduction is the result of the fornication, instead of, as under our statute, the latter the result of the sedivction. That case, in any view, [100]*100was but lightly considered ; for though it holds that the-testimony of the defendant was competent to show that the criminal act was not performed under promise of marriage, and that he had had sexual intercourse with the female before the time of her alleged seduction, yet affirms the judgment of the trial court which refused the-defendant an instruction based on and in conformity with such testimony.
Whatever view, however, may be taken of that case,, the statute on which it is based differs so much from our own that there is no practical parallelism between them. The case of the State v. Brassfield, 81 Mo. 151, is also in opposition to the views herein expressed, but on mature reflection and a careful examination of the-authorities there cited, as well as others which have been-commented upon, I am of opinion that we went too far in that case as to the rejection of evidence of prior acts of sexual intercourse between the prosecutrix and others-than defendant. Of course, no opinion is expressed, because not required by the facts of this record, as to a female who had once fallen, and afterward had reformed, and afterwards had been seduced under promise of marriage.
IY. There was error in permitting Mrs. Loe to testify as to a promise of marriage made by defendant in October, 1881. This was seventeen months after the alleged seduction, and, therefore, could shed no light on what was done at the time the alleged seduction occurred.
For the reasons aforesaid the judgment should be reversed and the cause remanded.
Norton and Black, JJ., concur; Ray, J., in the result; Henry, 0. J., concurs on some points, and files a dissenting opinion.