Opinion
04-06-1820
Parker v. Elliott.[*]
Bouldin for the plaintiff in error, Leigh contra.
This was an action of Trespass on the case, in the Superior Court of Halifax County, brought by Philip Elliott against Daniel Parker, for debauching and getting with child Polly Elliott the plaintiff's " daughter and servant," whereby he lost her service for a long time, that is to say, for the space of nine months during her pregnancy and one month thereafter, and was forced to expend divers sums of money, amounting in all to fifty dollars, in nursing and taking care of her, and in and about her delivery of her said child; to his damage two thousand dollars. The declaration was in the form laid down in 2 Chitty on Pleadings, p. 267, with no material difference. The defendant demurred; alleging, 1st, that the remedy of the plaintiff for the injury in the declaration alleged, ought to have been an action of Trespass vi et armis, and not on the case; 2dly, that the declaration contained no positive averment of any injury done by the defendant to the plaintiff. The Court, on argument, over-ruled the demurrer; whereupon a Jury was impanelled.
On the trial of the cause, the defendant moved the Court to instruct the Jury that, if they should consider, from the whole of the evidence, that the father, in the intercourse between the defendant and the plaintiff's daughter Polly Elliott, (who was of full age,) did not act with the caution of a man of ordinary prudence, in that case they should find for the defendant; which instruction was refused by the Court: --but the Court did instruct the Jury that, if the conduct of the plaintiff should appear to have been indiscrete that was a circumstance which should mitigate the damages. To this opinion the defendant excepted. A verdict was found for the plaintiff, assessing his damages to $ 609, besides his costs.
The defendant moved for a new trial, which the Court refused to grant; (the plaintiff by his Counsel releasing $ 209, part of the said damages; ) and judgment was entered according to the verdict, deducting the sum released.
The defendant obtained a Writ of Supersedeas from a Judge of this Court.
Judgment affirmed.
Bouldin for the plaintiff in error, relied on two objections; 1st that the declaration was all recital; beginning with the words " for that whereas," and so continuing to the end, without any positive averment; and, 2d, that trespass vi et armis, and not case, should have been the action; to prove which he cited Woodward v. Walton, 5 Bos. & Pull. 476.
Leigh contra. The declaration is copied from 2 Chitty, 267. It is there said, in note (u), that case seems the more proper form, when the action is merely for the seduction and loss of service; and so says Judge Buller in Bennet v. Allcott, 2 Term Rep. 167, which opinion is supported by the reason and nature of the thing; the injury being only consequential, and not accompanied with force. The declaration, it is true, may be in Trespass vi et armis, but this is founded on a fiction of law, which supposes force in such cases; but, in fact, there is no force at all; at any rate, none to the father or his property: as to him, the damages are all consequential.
As to the quod cum, Chitty says it is proper in such a case as this, though improper in trespass. In Pate v. Bacon & Co., decided by this Court at last term, the declaration was like that now in question; yet the judgment for the plaintiffs was affirmed.
2 Chitty 265. note (r), citing 2 Salk. 636; 1 Stra. 621.
See ante p. 219.
Bouldin in reply, submitted the question of the quod cum upon the authorities, which are very familiar. Mr. Leigh (he remarked) had produced no authority to prove that case was the proper action, but only Mr. Chitty's opinion, and a mere dictum of Judge Buller, not supported by any authority. The case in Bosanquet and Puller was on the very point now before the Court, and decided on full deliberation.
OPINION
By the Court, the Judgment was affirmed.
SEDUCTION.
I. Civil Action.
A. Constituents of the Action.
1. The Relation of Master and Servant.
a. General Statement.
b. The Servitude of the Daughter.
(1) When She Is under Twenty-One.
(2) When She Is over Twenty-One.
(3) When She Has Been Emancipated.
2. Her Seduction.
3. The Actual Loss of Service.
a. At Common Law.
b. Now by the Statute.
(1) General Statement.
(2) Constructions of the Statute.
(a) Its Purpose.
(b) Necessary Allegations.
(c) Present Form of the Action.
B. Remedies for Seduction of Daughter.
1. General Statement.
2. Effect of the Statute.
3. Forms of Action.
a. General Statement.
b. Action of Trespass Vi et Armis.
c. Action of Trespass on the Case.
d. Forms.
C. Defenses.
1. Infancy.
2. Statute of Limitations.
D. Quantum of Damages.
1. General Statement.
2. Damages May Be Exemplary.
E. Evidence.
1. In Aggravation of Damages.
a. Pecuniary Condition of Defendant.
b. Prior Promise of Marriage.
2. In Mitigation of Damages.
a. Conduct of Father.
b. Conduct of Daughter.
3. General Character of the Female.
4. Admissions.
II. Criminal Prosecution.
A. At Common Law.
B. By Statute.
1. In Virginia.
2. In West Virginia.
3. Incapable of Definition.
4. Elements of the Crime.
a. General Statement.
b. The Seduction.
c. The Promise of Marriage.
d. The Previous Chaste Character of the Female.
(1) Meaning of " Chaste Character."
(2) " Chaste Character" Presumed.
5. The Indictment.
6. Defenses.
a. The Statute of Limitations.
b. Compromise.
c. Marriage.
7. Evidence.
a. Character of the House.
b. Birth of Child.
c. Admissions of the Accused.
d. Unsupported Testimony of Female.
8. Duty of Jury.
I. CIVIL ACTION.
A. CONSTITUENTS OF THE ACTION.
There are three constituents of the action the presence of all of which is essential to its maintenance, viz. (1) the relation of the master on the part of the plaintiff to the female; (2) her seduction; (3) the actual loss of her services as a consequence. Lee v. Hodges, 13 Gratt. 726.
1. The Relation of Master and Servant.
a. General Statement.
With all its boasted excellence, the common law wholly failed to provide any form of action where a parent as such, or one standing " in loco parentis," could recover pecuniary compensation for the humiliation, shame, dishonor and anguish endured by him, or brought upon his family or household, by the libertine who with stealthy step invaded the sacred precincts of domestic peace and seduced a daughter from the path of purity and virtue and left to her and her child only a heritage of shame. For the wrong done to the offending daughter the law provides no remedy. Riddle v. McGinnis, 22 W.Va. 253.
For an injury done to a servant, which rendered him less able to render the service due to the master, he had his action on the case, per quod servitium amisit. By the common law, the father had the absolute legal right not only to the custody and care of his infant children, but also to their society and labor, and he was in many instances liable for their education and maintenance. His legal right to their society, attentions and services during their minority possessed a pecuniary value to him, and to this extent they became his servants and he their master, and, as a consequence of this relation of master and servant, his right of action against any person who by wrong or injury done to his servant rendered him less able to perform his usual service has been always maintained. Here then we find the legal foundation of the father's action on the case, for the seduction of his daughter. Riddle v. McGinnis, 22 W.Va. 253; White v. Campbell, 13 Gratt. 573; Lee v. Hodges, 13 Gratt. 726; Hudkins v. Haskins, 22 W.Va. 645.
b. The Servitude of the Daughter.
(1) When She is under Twenty-One.--The rule is well settled that whilst a daughter is under twenty-one years of age she is, for the purposes of the action, regarded as the servant of the father, even though she may not be living with him at the time, unless he has renounced all claim to her services. Lee v. Hodges, 13 Gratt. 726 at 737; Clem v. Holmes, 33 Gratt. 722, 36 Am. Rep. 793; Hudkins v. Haskins, 22 W.Va. 645; Riddle v. McGinnis, 22 W.Va. 253 at 263.
(2) When She Is over Twenty-One.--The relation of master and servant between father and daughter, where she lives in her father's family, even when she is over the age of twenty-one years, and when he has no legal right to command her services, or to receive her wages, is established by proof of the most trivial or valueless services rendered by her in his family, such as making tea, mending stockings, milking his cows, presiding at his tea table, or any other acts of service, however slight. Riddle v. McGinnis, 22 W.Va. 253 at 263; Lee v. Hodges, 13 Gratt. 726; Hudkins v. Haskins, 22 W.Va. 645.
(3) When She Has Been Emancipated.--When the daughter has arrived to years of discretion, has left the paternal roof, has emancipated herself from all legal control on the part of the father, and become in all regards the mistress of her own conduct and actions, the law gives the father no action for her seduction. Lee v. Hodges, 13 Gratt. 726; Hudkins v. Haskins, 22 W.Va. 645; Riddle v. McGinnis, 22 W.Va. 253.
As some apology for this supposed defect in the law, it is perhaps worthy of consideration, whether a reason for the failure of the law to allow an action in such case may not be found in the belief on their part that if in such a state of things the well-established virtuous habits and character of the daughter, her own matured sentiments of female purity and honor, and the discrete conduct and modest deportment which are their outward evidences, do not protect her against the arts of the seducer, no great additional safeguard to female virtue, no important additional security for the preservation of the public morals, would be afforded by a law conferring on a father or any one else a right to maintain a suit for her seduction. Daniel, J., in Lee v. Hodges, 13 Gratt. 726.
2. Her Seduction.
In order for the father to maintain his action, it is necessary for him to prove that she was in fact seduced. Lee v. Hodges, 13 Gratt. 726.
3. The Actual Loss of Service.
a. At Common Law.
As the action for seduction is founded on the relation of master and servant, the gist of the action at common law is the loss of service. Fry v. Leslie, 87 Va. 269, 12 S.E. 671; Clem v. Holmes, 33 Gratt. 722, 36 Am. Rep. 793; Riddle v. McGinnis, 22 W.Va. 253. And some service must be proved, however trifling and valueless. Clem v. Holmes, 33 Gratt. 722, 36 Am. Rep. 793.
At common law, it was necessary to aver and prove loss of service in order to maintain the action. It has been long and well settled, however, that loss of actual service had little to do with the action; and that in substance it was an action for damages, not only for the loss of service, but also for all that the plaintiff could feel from the nature of the injury. White v. Campbell, 13 Gratt. 573; Riddle v. McGinnis, 22 W.Va. 253.
For the courts have always treated the relation of master and servant, and the loss of service, as innocent fictions which merely served to give the court jurisdiction, while the measure of the plaintiff's damages was not merely the actual value of the services lost, but compensation for the shame, disgrace and anguish suffered by the father, in the defilement and ruin of his daughter. Riddle v. McGinnis, 22 W.Va. 253.
b. Now by the Statute.
(1) General Statement.--But now it is provided that an action for seduction may be maintained without any allegation or proof of the loss of the service of the female, by reason of the wrongful act. Code Va., § 2896; Code W. Va., ch. 103, § 1.
(2) Constructions of the Statute.
(a) Its Purpose.--Under this statute, it has been held that its sole purpose is to dispense with the proof of services. Clem v. Holmes, 33 Gratt. 722, 36 Am. Rep. 793.
(b) Necessary Allegations.--All that is now necessary to be alleged and proved is that the relation of master and servant existed between the father and daughter at the time the fact occurred, which, as the law formerly was, would have occasioned the loss of the service of the daughter. Riddle v. McGinnis, 22 W.Va. 253 at 259.
(c) Present Form of the Action.--The action is now, in form as well as substance, an action to recover damages for the wound inflicted by the seducer on the peace and happiness of the father. White v. Campbell, 13 Gratt. 573.
B. REMEDIES FOR SEDUCTION OF DAUGHTER.
1. General Statement.
Every action by a parent founded upon the seduction of his or her daughter must be ex delicto. Fry v. Leslie, 87 Va. 269, 12 S.E. 671; 4 Min. Inst. (2d Ed.) 440; White v. Campbell, 13 Gratt. 573; Parker v. Elliott, 6 Munf. 587; S. C., Gilm. 33; Hudkins v. Haskins, 22 W.Va. 645.
2. Effect of the Statute.
" The action in ex delicto is the proper form at common law, and our statute merely affects the quantum of proof. The action itself remains as it was, i. e., it belongs to the same class of actions as before the statute was passed." Fry v. Leslie, 87 Va. 269, 12 S.E. 671, citing Lee v. Hodges, 13 Gratt. 726, and Clem v. Holmes. 33 Gratt. 722, 36 Am. Rep. 793.
3. Forms of Action.
a. General Statement.
The father may elect to bring case or trespass for the injury. Parker v. Elliott, 6 Munf. 587; Parker v. Elliotte, Gilm. 33.
b. Action of Trespass Vi et Armis.
The action of trespass vi et armis lies for the seduction of a daughter on the same principle that authorizes it in case of adultery with a wife, namely, that the female, in either case, is considered as having no power to consent. And the same consideration renders it frequently the more eligible action; as that a count for breaking and entering the father's premises, or for some other violent injury, may also be introduced. 4 Min. Inst. (3d Ed.) 530, and cases there cited.
c. Action of Trespass on the Case.
Trespass on the case may properly be brought by the father for the loss of the service of his daughter and expense incurred by him in consequence of her being debauched and got with child, no forcible injury to himself or his property being alleged in the declaration. Parker v. Elliott, 6 Munf. 587; Parker v. Elliotte, Gilm. 33; 4 Min. Inst. (3d Ed.) 530.
d. Form.
The second count in the form laid down in 4 Rob. Prac. 626, is, the author says, taken from the second count in Lee v. Hodges, 13 Gratt. 726 at 737, and was there held by the supreme court to be good on demurrer. It is set forth in the statement of the case in Clem v. Holmes, 33 Gratt. 722, 36 Am. Rep. 793, and there Staples, J., delivering the opinion of the court, after making the above statement, says, that " This would seem to be conclusive of the question."
C. DEFENSES.
1. Infancy.
As the action is in ex delicto and an infant is always liable for his torts, the plea of infancy is of no avail in an action for the seduction of the plaintiff's daughter. Fry v. Leslie, 87 Va. 269, 12 S.E. 671.
2. Statute of Limitations.
It is wholly immaterial, in a suit by the father for the loss of the services of his daughter, when the defendant first debauched and carnally knew her, and if at the time of the seduction she be abroad and returns to the house of her parents, where expenses are incurred, and loss, actually or by presumption of law, is suffered, in consequence of the seduction, the statute of limitations will begin to run from the time of such loss (i. e., her confinement). Clem v. Holmes, 33 Gratt. 722, 36 Am. Rep. 793; Fry v. Leslie, 87 Va. 269, 12 S.E. 671; Riddle v. McGinnis, 22 W.Va. 253 at 275.
D. QUANTUM OF DAMAGES.
1. General Statement.
The rule has long been settled that in an action by a parent, or by one standing in loco parentis. the jury may consider not only the loss of service, but the wounded feelings of the plaintiff, and find accordingly. And now by our statute a recovery may be had upon the last mentioned ground alone, although the relation of master and servant is still essential to the maintenance of the action. Indeed, for a long time prior to the statute, the allegation of loss of service has come to be regarded, both in England and this country, as in some measure a fiction--a mere technical form through which the infamy was presented to the court. Fry v. Leslie, 87 Va. 269, 12 S.E. 671, 2 Rob. (new) Pr. 561; Lee v. Hodges, 13 Gratt. 726; Riddle v. McGinnis, 22 W.Va. 253 at 271.
2. Damages May Be Exemplary.
As has been well said, the damages in this action are not measured by the mere loss of service or the necessary expenses incurred; but they are given also to punish the seducer for the anguish and dishonor the outrage brings upon the parent. These damages are not merely compensating--they may be exemplary in their nature. The rank and condition of the parties; the injury to the most sacred feelings and affections; the shame and disgrace cast upon the family; and the anguish of mind in having a daughter whose society brings no comfort to the parent, and whose example may corrupt other members of the family, are all proper to be considered. This being so, the jury, in fixing the amount of the recovery, may and ought to have reference to the pecuniary circumstances of the defendant. In all such cases, the wrong is aggravated in proportion to the wealth and position and rank of the guilty party. All of which may be instruments by which he more readily accomplishes his purposes. Clem v. Holmes, 33 Gratt. 722, 36 Am. Rep. 793; Riddle v. McGinnis, 22 W.Va. 253 at 278; Lee v. Hodges, 13 Gratt. 726; White v. Campbell, 13 Gratt. 573.
E. EVIDENCE.
1. In Aggravation of Damages.
a. Pecuniary Condition of Defendant.
A verdict which would be absolutely ruinous to a man in moderate circumstances would scarcely be felt by one possessed of a large fortune, and would be but an invitation to a renewal of the offense whenever the opportunity occurred for its commission. If the jury believe the plaintiff is entitled to vindictive damages, they will the more readily give them where they are satisfied the defendant is able to pay than they would be where the appeal is made that the verdict would reduce the defendant to bankruptcy and ruin. At all events, it is better to place the jury in full possession of all the facts as to the condition and circumstances of the parties than to leave them to grope their way in the dark and to base their verdict upon fanciful conjectures and rumors. Clem v. Holmes, 33 Gratt. 722, 36 Am. Rep. 793; Riddle v. McGinnis, 22 W.Va. 253; Lee v. Hodges, 13 Gratt. 726; White v. Campbell, 13 Gratt. 573.
b. Prior Promise of Marriage.
These damages are exemplary; and whatever evidence reasonably tends to aggravate the offender's wrong, and show the extent of the father's loss, is legal and proper. Evidence of the means by which the seduction was accomplished is of that character. And upon principle, therefore, it would seem to be very clear, that if the wicked act was accomplished by means of a prior promise of marriage, evidence of such promise would be admissible in aggravation of the damages. That such promise is an independent cause of action by the daughter is no good reason why it should not be proved in aggravation of damages in the father's action for seduction. His action is ex delicto, hers, ex contractu. The evidence is merely collateral to his action, while it is the very foundation of hers. Each has a perfect right to recover damages to the full extent of the wrong done to each; and, in order to do so, may prove whatever may reasonably serve to show the measure of damages sustained by each. White v. Campbell, 13 Gratt. 573; Hudkins v. Haskins, 22 W.Va. 645 at 660.
2. In Mitigation of Damages.
a. Conduct of Father.
It is not error that in such case the court refused to instruct the jury that if, upon the whole evidence, it shall appear to them that the father, in the intercourse between the defendant and his daughter (who was of full age), did not act with the caution of a man of ordinary prudence, they ought to find for the defendant: but do instruct the jury that, if the conduct of the plaintiff shall appear to have been indiscreet, that is a circumstance which should mitigate the damages. Parker v. Elliott, 6 Munf. 587.
b. Conduct of Daughter.
The defendant is allowed to show, in mitigation of damages, particular acts of unchastity on the part of the female with other men, prior to her alleged seduction, and even wanton acts or loose conduct, though not amounting to unchastity. And, upon the same principle, evidence has been held admissible to prove an admission by the woman that she had allowed a certain man to take indecent liberties with her. Fry v. Leslie, 87 Va. 269, 12 S.E. 671.
But evidence of mere immodest remarks, or the like, not connected with any immoral act, such evidence being too remote and therefore incapable of affording any safe or reasonable presumption as to the previous chastity of the female, and not merely whether she was of modest or refined nature, is not admissible. Fry v. Leslie, 87 Va. 269, 12 S.E. 671.
3. General Character of the Female.
In an action for seduction, the general character of the female for chastity is involved, and may, therefore, be impeached by general evidence. Fry v. Leslie, 87 Va. 269, 12 S.E. 671.
4. Admissions.
Letters, written by the defendant to the plaintiff's daughter after he received word of her being pregnant, discussing the plans for her being delivered incognito in a hospital, are admissible in evidence as implied admissions of guilt. Fry v. Leslie, 87 Va. 269, 12 S.E. 671.
II. CRIMINAL PROSECUTION.
A. AT COMMON LAW.
At common law, an indictment or information will not lie either for simple incontinence or for incontinence produced by means of deception, inveiglement, or enticement, --in other words, by seduction, --unless it be accompanied with other circumstances which of themselves constitute a misdemeanor, such as the public commission of the act or conspiracy. Anderson v. Com., 5 Rand. 627. The court in this case expressly refused to take cognizance of a simple case of seduction (i.e., one not committed in public nor accomplished by a conspiracy) on the ground that it was against public morals, saying, " It is too late now to assume jurisdiction over a new class of cases. under the idea of their being contra bonos mores. We must consider the practice of the English courts, from which we derive the principle, as having settled in the course of many centuries, the true limits and proper subjects of this principle. If we are to disregard these landmarks, and take up any case which may arise under this principle, as res integra then might it be extended to cases which none has yet thought of as penal. A case of slander may display as much baseness and malignity of purpose, as much falsehood in its perpetration, as ruinous effects in its consequences, and as pernicious an example in its dissemination, as this case of seduction. And yet none would think of prosecuting it, criminally." Dade, J., in Anderson v. Com., 5 Rand. 627.
B. BY STATUTE.
1. In Virginia.
If any person, under promise of marriage, seduce and have illicit connection with any unmarried female of previous chaste character, or if any married man seduce and have illicit connection with any unmarried female of previous chaste character he shall be guilty of a felony, and, upon conviction thereof, shall be punished by confinement in the penitentiary not less than two, nor more than ten years. Code Va., § 3677.
2. In West Virginia.
West Virginia provides no penalty whatever for the crime of seduction.
3. Incapable of Definition.
As was said in a note to Mills v. Com., 2 Va. Law Reg. 679: " Illicit intercourse alone, during the existence of a marriage engagement, is insufficient--there must be the 'seduction' besides. We understand the court to so decide in approving the third instruction, that she must have yielded 'by reason of the promise; ' in other words, that seduction 'under' promise of marriage is tantamount to illicit connection accomplished 'by means of' such promise. Many of the courts have taken a narrower view of the statute, and, by requiring proofs of 'arts, blandishments and artifice' or deceits and false promises, have made comparatively easy the way of the seducer." Flick v. Com., 97 Va. 766, 34 S.E. 39.
In all cases arising under § 3677 of the Code, it is conceded that there must be seduction superadded to illicit connection to constitute the crime. To seduce is to lead astray from the path of virtue. It does not consist in arts and blandishments. They are the means by which the crime is accomplished, and not the crime itself, and therefore Bishop says: " In determining whether or not there is a sufficient seducing, the precise statutory terms should be regarded. Aside from such terms, the kind and extent of the seductive arts appear to depend less on absolute rule than on the circumstances of the particular case--among them the character, age, intelligence, and education of the woman. In general, if in fact they accomplish the object they are sufficient in law." Bish. Stat. Crimes, § 640; Flick v. Com., 97 Va. 766, 34 S.E. 39.
Keeping in mind the distinction between the crime itself and the means by which it may be accomplished, it is obvious that the latter may be as various as the characters and environments of the parties, and are incapable of being brought within the terms of a definition, and it may be observed that to undertake to define with precision the conditions necessary to the perpetration of the offence would tend, in the language of the Va. Law Reg., " to make comparatively easy the path of the seducer." It is better to leave each case to be determined by its own circumstances. The crime may be complete although in a particular case " flattery, false promises, artifice, urgent importunity based upon professions of attachment, and the like, for the woman," did not conspire to cause the surrender of her person and chastity to her alleged seducer. Flick v. Com., 97 Va. 766, 34 S.E. 39.
4. Elements of the Crime.
a. General Statement.
To constitute the crime of seduction, it is necessary to show (1) the seduction, (2) the promise of marriage, and (3) the previous chaste character of the female seduced. Mills v. Com., 93 Va. 815, 22 S.E. 863.
b. The Seduction.
The offence of seduction consists in seducing and having illicit connection with an unmarried female, under promise of marriage. Barker v. Com., 90 Va. 820, 20 S.E. 776.
There must be something more than sexual intercourse to establish the guilt of the defendant. There must be seduction. A female of previous chaste character must be led astray from the path of virtue. That is the offence. Flick v. Com., 97 Va. 766, 34 S.E. 39.
And if the prosecutrix was not seduced by the defendant, but voluntarily. and solely for the gratification of her sexual desires, or other reasons, submitted to the connection, then the defendant is not guilty of the crime. Flick v. Com., 97 Va. 766, 34 S.E. 39.
c. The Promise of Marriage.
Save in the case of a married man, the consent of the female must be obtained " under the promise of marriage." This is one of the statutory elements of the crime. Code, § 3677. Mills v. Com., 93 Va. 815, 22 S.E. 863; Hausenfluck v. Com., 85 Va. 702, 8 S.E. 683.
See 5 Va. Law Reg. 205, note, " Seduction by a Married Man," collecting the authorities.
d. Previous Chaste Character of Female.
(1) Meaning of " Chaste Character." --The phrase " any unmarried female of previous chaste character" of the statute includes any woman who has preserved her chastity and kept her person from actual defilement. Keith, J., delivering the opinion of the court, said: " There are women in whose presence every evil thought stands abashed. They are guarded by their innocence and purity and need no other protection. They stand invulnerable in their own virtue. There are others whose dispositions are more easy and complaisant, but would have perhaps escaped irretrievable ruin had not their confidence been secured, and their apprehensions put at rest by a promise of marriage. To shield and save them from the arts of the seducer was the object of the law. It would be a mockery to extend its protecting care only to those who have no need of its assistance. It should be here and ever the refuge and support of those who most need its protection." Mills v. Com., 93 Va. 815, 22 S.E. 863.
(2) " Chaste Character" Presumed. --In prosecution for seduction, the previous chaste character of the female is presumed by law and the burden of impeaching it lies upon the accused. Barker v. Com., 90 Va. 820, 20 S.E. 776; Mills v. Com., 93 Va. 815, 22 S.E. 863; Flick v. Com., 97 Va. 766, 34 S.E. 39.
In People v. Brewer, 27 Mich. 134, Judge Cooley, speaking for the court, said, " The presumption of law should be in accordance with the general fact; and whenever it shall be true of any country that the women, as a general fact, are not chaste, the foundations of civil society will be wholly broken up. Fortunately, in our country an unchaste female is comparatively a rare exception to the general rule, and whoever relies upon the existence of the exception in a particular case should be required to prove it." Barker v. Com., 90 Va. 820, 20 S.E. 776.
5. The Indictment.
See monographic note on " Indictments, Information's and Presentments" appended to Boyle v. Com., 14 Gratt. 674.
6. Defenses.
a. Statute of Limitations.
Unless the indictment shall be found within two years after the commission of the offense, no conviction shall be had. Code Va., § 3679.
b. Compromise.
No compromise between the prosecutrix and the prisoner, or anyone else, can bar a prosecution by the commonwealth for the seduction. Barker v. Com., 90 Va. 820, 20 S.E. 776.
c. Marriage.
But the subsequent marriage of the parties may be pleaded in bar of a conviction. Code Va., § 3679.
7. Evidence.
a. Character of the House.
At trial for felonious seduction, held, the character of the house, whether of ill or good repute, where prosecutrix resided prior to her alleged seduction, may be proved by evidence of particular facts, and not the conclusions of the witnesses, and not by general reputation. Barker v. Com., 90 Va. 820, 20 S.E. 776.
b. Birth of Child.
At such a trial, it is allowable to prove the birth of the child. Hausenfluck v. Com., 85 Va. 702, 8 S.E. 683.
c. Admissions of the Accused.
At a trial for seduction, admission of the accused to the matron of a lying in hospital, to which he took prosecutrix, that he had seduced her, that she was before that respectable and that he would marry her when her confinement was over and the child put into an infant asylum, are relevant and competent evidence. Hausenfluck v. Com., 85 Va. 702, 8 S.E. 683.
Where the prisoner hears the warrant of arrest read, and pleads guilty before a justice of the peace, and acknowledges his guilt to the father and other parties, but afterwards claims that he meant to acknowledge only that he was guilty of illicit intercourse, the instruction to the jury that " in a criminal case admissions and confessions of the accused are admitted with caution, and the court tells the jury that it is their province to consider all the circumstances under which the alleged admissions were made and determine their exact nature, import and meaning," was a proper one. Flick v. Com., 97 Va. 766, 34 S.E. 39.
d. Unsupported Testimony of Female.
In a prosecution for seduction under a promise of marriage, there cannot be a conviction on the unsupported evidence of the female seduced, but there must be other evidence, not emanating from her mouth, which adds to, strengthens, confirms and corroborates hers. The seduction and the promise of marriage are elements of the crime which must be established by such corroborating evidence in order to sustain a conviction. Mills v. Com., 93 Va. 815, 22 S.E. 863; Hausenfluck v. Com., 85 Va. 702, 8 S.E. 683; Barker v. Com., 90 Va. 820, 20 S.E. 776; Va. Code, § 3679.
8. Duty of Jury.
In a criminal prosecution for seduction, it is the duty of the jury to weight the evidence carefully, and to pass upon it dispassionately, and to give the prisoner the benefit of any reasonable doubt; but it is no more their duty to endeavor to acquit him than to convict him. Barker v. Com., 90 Va. 820, 20 S.E. 776.
[*]For monographic note on Seduction, see end of case.