Summary
In Aldridge v. State, 232 Miss. 368, 376, 99 So.2d 456 (1958), this Court was confronted with the issue of a crime having multiple elements which were committed in multiple counties.
Summary of this case from Stubbs v. StateOpinion
No. 40754.
January 6, 1958.
1. Seduction — consent of female to act of intercourse an essential element — slight resistence or reluctance — immaterial.
Consent of the prosecutrix to act of intercourse is an essential element of the crime of seduction, although if consent is obtained, fact that there was some slight resistance or reluctance or that the prosecutrix was to some extent influenced by fear, is immaterial. Sec. 2374, Code 1942.
2. Seduction — promise of marriage — consent — evidence — sufficient to create jury issue — to warrant finding prosecutrix consented.
In prosecution for seduction, evidence, including testimony that prosecutrix was afraid of defendant and yielded to his demands under inducement of his promise to marry was sufficient to create an issue for determination of jury on question of consent, and to warrant jury in finding that prosecutrix while reluctant to do so, yielded to act of intercourse under defendant's promise to marry, notwithstanding her testimony that defendant forced himself on her and that she did not consent to act of intercourse. Sec. 2374, Code 1942.
3. Seduction — corroboration of woman seduced as to act of intercourse — burden of proof — sufficiency of corroborative evidence — circumstantial evidence.
In seduction prosecution, it is necessary that prosecutrix be corroborated as to act of intercourse, which is an essential element of the crime, and although burden is upon State to prove such element, it is not necessary that this be done by direct evidence, and it is sufficient to establish such material fact by circumstantial evidence. Sec. 2374, Code 1942.
4. Seduction — corroboration of woman seduced as to act of intercourse — circumstantial evidence — proof that parties spent night together in private room in motel — sufficient — as to act of intercourse — to sustain conviction.
In prosecution for seduction, proof of fact that defendant and prosecutrix spent the night together in a private room in a motel was a sufficient circumstance to be submitted to jury for their determination as to whether act of intercourse occurred, and was sufficient corroboration of testimony of prosecutrix as to the act of intercourse, to sustain conviction. Sec. 2374, Code 1942.
5. Criminal law — seduction — jurisdiction — offense committed partly in one county and partly in another — statute applicable — promise to marry in one county — act of intercourse in another.
Statute providing that when an offense is committed partly in one county and partly in another, jurisdiction shall be in either county in which such offense was commenced, was applicable in seduction prosecution, where promise to marry occurred in one county, and act of intercourse occurred in another county, and it was proper for prosecution to be first begun in either county. Secs. 2374, 2429, Code 1942.
6. Criminal law — venue — offense committed partly in one county and partly in another — constitutional provision entitling accused to speedy trial by impartial jury in county where offense committed — relates to crime committed in one county.
Where crime is committed partly in one county and partly in another, venue may be laid in either county without doing violence to provision of Constitution that accused shall have right to a speedy trial by an impartial jury of county where offense was committed, since such constitutional provision relates only to crime committed in one county. Sec. 2429, Code 1942; Sec. 26, Constitution 1890.
7. Criminal law — seduction — Trial Court properly declined to permit defendant to interrogate prosecutrix with reference to subsequent acts of intercourse.
In such case, Trial Court did not commit prejudicial error in declining to permit defendant to interrogate prosecutrix with reference to subsequent act of intercourse, on theory such evidence was competent as bearing upon question of prosecutrix' previous chaste character, in view of evidence that after commission of act of intercourse in question, defendant and prosecutrix lived together as man and wife for a number of months.
8. Criminal law — seduction — Trial Court properly refused requested instruction with reference to subsequent acts of intercourse as bearing upon prosecutrix' previous chaste character.
In view of evidence in case, Trial Court did not commit prejudicial error in refusing requested instruction to the effect that if jury believe that after alleged seduction occurred, that prosecutrix continued to have intercourse with the defendant, such acts do not affect the guilt of defendant and may be considered by the jury as bearing upon the previous chaste character of the prosecutrix.
9. Criminal law — evidence — sustained conviction for seduction.
Headnotes as approved by Holmes, J.
APPEAL from the Circuit Court of Forrest County; FRANCIS T. ZACHARY, Judge.
Carl W. Welborn, Hattiesburg, for appellant.
I. Appellant could not as a matter of law be guilty of the crime of seduction when the testimony of the prosecutrix conclusively shows that at no time did the prosecutrix consent to intercourse with the defendant. Castleberry v. State, 94 S.E. 269; 47 Am. Jur., Seduction, p. 632.
II. The Circuit Court of Forrest County, Mississippi was without jurisdiction of the alleged crime and a fatal variance existed as to the venue alleged in the indictment and the proof offered by the State during the trial. Art. III, Sec. 26, Constitution 1890; Sec. 2429, Code 1942.
III. Appellant could not be guilty of seduction when there was no corroboration of the prosecutrix as to the act of intercourse. Ferguson v. State, 71 Miss. 205, 155 So. 66; King v. State, 121 Miss. 230, 83 So. 164.
IV. The Trial Court erred in refusing appellant the right to question prosecutrix as to subsequent acts of intercourse between the appellant and prosecutrix after the alleged crime. Ferguson v. State, supra.
V. The Court erred in granting the instructions which were granted the State and the State wholly failed to meet the burden of proof. Norton v. State, 72 Miss. 128, 16 So. 264.
J.R. Griffin, Asst. Atty. Gen., Jackson, for appellee.
I. The evidence as to the consent of the prosecutrix to the act is sufficient to sustain the verdict of the jury. 47 Am. Jur., Seduction, Secs. 5, 7.
II. The Circuit Court of Forrest County did have jurisdiction of the alleged crime and there was no variance between the indictment and proof. Sec. 2429, Code 1942.
III. The prosecuting witness was sufficiently corroborated as to the act of sexual intercourse.
IV. The Trial Court did not err in refusing appellant the right to question the prosecutrix as to subsequent acts of intercourse between the appellant and prosecutrix after the alleged seduction.
V. The Court did not err in granting State instructions complained of.
The appellant was indicted in the Circuit Court of Forrest County on a charge of seduction. The indictment specifically charged that he "did wilfully and unlawfully and feloniously seduce, obtain carnal knowledge of one Willena Walker, a single woman over the age of 18 years, of previous chaste character, by virtue of false promise of marriage to her previously made by him, the said Allen Leon Aldridge." It was charged in the indictment that the offense was committed in Forrest County. The prosecution was brought under Section 2374, Vol. 2A Recompiled, Mississippi Code of 1942, which reads as follows:
"If any person shall obtain carnal knowledge of any woman, or female child, over the age of eighteen years, of previous chaste character, by virtue of any feigned or pretended marriage or any false or feigned promise of marriage, he shall, upon conviction, be imprisoned in the penitentiary not more than five years; but the testimony of the female seduced, alone, shall not be sufficient to warrant a conviction."
The appellant's trial resulted in his conviction and he was sentenced to three years in the State penitentiary.
On this appeal the appellant challenges the sufficiency of the evidence, the jurisdiction of the court, and the action of the trial court in granting to the State certain instructions and in refusing certain instructions requested by the appellant.
There is little dispute in the evidence on the material issues involved. The prosecutrix, Willena Walker, became 19 years of age on November 4, 1956. She was employed in Hattiesburg by the State Tax Commission and had been for about a year and a half. She occupied a room in the home of Mrs. F.L. Summers in Hattiesburg. She was born and reared in Forrest County and had formerly lived with her parents in the Elks Lake Rural Community. Witnesses testified that prior to her association with the appellant, she was a nice girl of chaste character, regularly attended Church and Sunday School, and participated in the activities of the Church organizations. She met the appellant on a blind date about the middle of April, 1957, having been introduced to him by Bess Harrington, a girl friend. On her second date with the appellant, he made a proposal of marriage to her and she accepted it, and they became engaged. At this time the appellant was already married and had a living and undivorced wife and a child two and a half years old. He gave her an engagement ring and she bought a ring for him. Her parents did not approve of the marriage, suggesting that they wait awhile until they had known each other better. On Easter Sunday, April 23, 1957, they took dinner at the home of her parents. On that occasion, the appellant told her parents that he was in love with their daughter and wanted to marry her. The parents did not approve. The appellant was employed as field supervisor for the Southern National Insurance Company in Hattiesburg. Willena resigned her position with the State Tax Commission, telling her boss she was going to get married. On April 25, 1957, they left Hattiesburg and were driven by Roscoe Sims to Bay Springs where they obtained a marriage license. They returned to Laurel, and the appellant told her that he had some work to do there and suggested that they get a room in a motel where she could rest. He registered in the New Laurel Motel in Jones County, Mississippi. The registration card showed that the room was for a party of two. The appellant and Willena spent the night together in the Motel and had intercourse. While the prosecutrix testified on cross-examination that the appellant forced himself on her and that she did not consent to the intercourse, she said that she was induced to yield to his demands and engage in the act of intercourse by his prior promise of marriage. They returned to Hattiesburg, and later went to Bogalusa, Louisiana, where they stayed together in a motel. There the appellant told her that they were not going to be married. In order to avoid embarrassment since they were masquerading as husband and wife, he made her sign the certificate on the marriage license showing the celebration of the marriage ceremony, and at his instance, she signed the name of Dr. T.A. Carlisle, D.D., a fictitious name. The appellant destroyed that part of the certificate to be returned to the circuit court clerk. They thereafter lived together as man and wife in McComb for a month or more. They visited in the home of her parents over night on both Mother's Day and Father's Day, representing that they were married, and she exhibited to her mother the marriage certificate. The neighborhood ladies gave her a shower, which was attended by a number of people and at which the prosecutrix introduced the appellant as her husband. During all of these relations, Willena insisted that they get married purusuant to his promise, but he would not go through with the marriage. The appellant had been previously married and had a child. He informed Willena of this prior marriage, but represented to her that he had been divorced, and this she believed, according to her testimony, and thought that he was free to enter into the marriage with her.
The appellant contends, first, that the consent of the prosecutrix to intercourse is an essential element of the crime of seduction, and that since the prosecutrix testified that the appellant forced himself on her and that she did not consent to the act, the State has failed to prove an essential element of the crime, and that, therefore, the appellant's request for a peremptory instruction should have been granted.
(Hn 1) It is true, of course, that the consent of the prosecutrix to the act of intercourse is an essential element of the crime of seduction. However, it is stated in 79 C.J.S., Seduction, page 988, as follows:
"If consent was obtained, the fact that there was some slight resistance or reluctance or that the woman was to some extent influenced by fear, is immaterial."
It is further stated in 47 Am. Jur., Seduction, Section 7, as follows:
"Consent, either actual or implied, of the female to the act of intercourse is an essential element of the crime of seduction. If the victim ultimately assents or yields to the act of intercourse, the fact that she resisted the advances of her seducer for a time does not preclude the perpetration of a criminal seduction." See also Jones v. State, 90 Ga. 616, 16 S.E. 380.
(Hn 2) It is true that the prosecutrix testified on cross-examination that the appellant forced himself on her and that she did not consent to the act of intercourse. She testified positively, however, that she was afraid of him and that she yielded to his demands under the inducement of his promise to marry her. It is not claimed that the appellant used physical force or violence. We think the only fair and reasonable conclusion from her testimony is that she yielded to the wishes of the appellant and that the little resistance she made was the outcome of her maidenly modesty. While protesting she would not consent, she consented. As Byron wrote:
"But who, alas! can love and then be wise? not that remorse did not oppose temptation; A little still she strove, and much repented, And, whispering, `I will ne'er consent,' consented."
Certainly the evidence was sufficient to create an issue for the determination of the jury on the question of her consent, and to warrant the jury in finding that while she was reluctant to do so, she yielded to the act of intercourse under the appellant's promise to marry her. We therefore find no merit in this contention.
(Hn 3) It is further contended by the appellant that the evidence affords no corroboration of the act of intercourse and that for that reason the evidence is insufficient to sustain the conviction. Of course, it was necessary under the statute that the prosecutrix be corroborated as to the act of intercourse, which is an essential element of the crime. The burden was upon the State to prove this essential element. It was not necessary, however, that this be done by direct evidence. It was sufficient to establish this material fact by circumstantial evidence. 79 C.J.S., Seduction, page 1007. (Hn 4) Proof of the fact that the appellant and the prosecutrix spent the night together in a private room in a motel was a sufficient circumstance to be submitted to the jury for their determination as to whether the act of intercourse occurred. We think the jury was warranted in finding this to be a sufficient corroborative circumstance to establish the fact of intercourse. We are of the opinion, therefore, that the appellant's contention that there was no corroboration of the prosecutrix as to the act of intercourse is not well founded.
(Hn 5) The appellant next contends that the circuit court of Forrest County was without jurisdiction of the crime and that there was a fatal variance as to the venue alleged in the indictment and the proof introduced on the trial. The indictment charged that the offense was committed in Forrest County. The proof showed that the promise of marriage occurred in Forrest County but that the act of intercourse occurred in Jones County. Both the promise of marriage and the act of intercourse are essential elements of the crime, and, therefore, the crime was committed partly in one county and partly in another, and the jurisdiction of the crime became governed by Section 2429, Vol. 2A Recompiled, Mississippi Code of 1942, which provides as follows:
"When an offense is committed partly in one county and partly in another, or where the acts, effects, means, or agency occur in whole or in part in different counties, the jurisdiction shall be in either county in which said offense was commenced, prosecuted, or consummated, where prosecution shall be first begun."
In the case before us one of the essential elements of the crime was committed in Forrest County and another essential element of the crime was committed in Jones County. The above quoted statute, therefore, became applicable, and it was proper for prosecution to be first begun in either county. It is argued by the appellant, however, that to sustain the jurisdiction of the crime in Forrest County would be in contravention of Article III, Section 26 of the Mississippi Constitution, which provides, among other things, that the accused shall have the right to a speedy and public trial by an impartial jury of the county where the offense was committed. We do not think so. (Hn 6) We think that where the crime is committed partly in one county and partly in another, the venue may be laid in either county without doing violence to the constitutional provision. It is manifest that the constitutional provision relates to crimes wholly committed in one county. Certainly it was not the intention of the framers of the constitution that one who commits a crime partly in one county and partly in another should not be amendable to the jurisdiction of the court in either county and should therefore be exempt from prosecution.
We think the question here raised by the appellant has been put at rest by the case of Atkinson v. State, 132 Miss. 377, 96 So. 310. In the Atkinson case, the Court had under consideration what is now Section 2430 of the Mississippi Code of 1942, providing that where the mortal stroke or other cause of death occurs or is given or administered in one county, and the death occurs in another county, the offender may be indicted and tried in either county. The Court held that this statute was not violative of Article III, Section 26 of the Mississippi Constitution. We think that the question presented in the Atkinson case and that presented here is one arising under analogous statutes, and that the statute here under consideration, like the statute under consideration in the Atkinson case, is not violative of the constitutional provision.
It is further contended by the appellant that the trial court erred in refusing the appellant to question the prosecutrix as to subsequent acts of intercourse between her and the appellant after the commission of the act of seduction. In this connection, the appellant also complains that the court erred in refusing its request for the following instruction:
"The court instructs the jury for the defendant that if the jury believes from the evidence in this case that after the alleged seduction occurred, Willena Walker continued to have intercourse with the defendant, Allen Aldridge, such acts do not affect the guilt of the defendant and may be considered by the jury as bearing upon the previous chaste character of Willena Walker."
(Hn 7) The appellant argues that he should have been permitted to interrogate the prosecutrix with reference to subsequent acts of intercourse between her and the appellant, it being the position of the appellant that such evidence of subsequent acts of intercourse was competent as bearing upon the question of the prosecutrix's previous chaste character. Without regard to whether the evidence as to subsequent acts of intercourse was admissible, we think that the action of the court in declining to permit such interrogation of the prosecutrix and in refusing the requested instruction was not prejudicial to the appellant for the reason that the evidence amply shows that after the commission of the crime of seduction, the appellant and the prosecutrix lived together as man and wife for a number of months, and such evidence was ample to inform the jury that subsequent acts of intercourse had been committed. We are of the opinion, therefore, that the ruling of the court with reference to such evidence, (Hn 8) and with reference to the instruction requested, was not prejudicial to the appellant and did not constitute reversible error.
The appellant finally contends that the court erred in granting to the State its instructions number one and two. We have carefully examined these instructions and are of the opinion that they correctly instructed the jury as to the applicable law. We therefore find no merit in this contention.
(Hn 9) Viewing the record as a whole, we are of the opinion that it clearly establishes the guilt of the appellant. His act was deliberate. He knew when he proposed marriage to the prosecutrix that he was already married and had a living and undivorced wife and was not free to marry another. It is manifest, therefore, that he had no intention of marrying her lest he subject himself to grave penalties of the law. His proposal of marriage could have had but one purpose and that he accomplished. In so doing, he has brought tragedy to the life of a young girl. It is but just that the strong hand of the law should be laid upon him, and the jury has so decreed. We find no reversible error in the record and the judgment of the court below is affirmed.
Affirmed.
Roberds, P.J., and Hall, Lee and Ethridge, JJ., concur.