Opinion
6 Div. 35.
January 19, 1932. Rehearing Denied March 22, 1932.
Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.
Eugene McKinney was convicted of seduction, and he appeals.
Reversed and remanded.
Certiorari denied by Supreme Court in McKinney v. State, 225 Ala. 7, 141 So. 706.
The following charge was given for the state: "S-5. If the jury believe from all the evidence in this case, beyond a reasonable doubt that in this county and within three years before the finding of the indictment, the defendant by means of temptation, arts, flattery, deception, or a promise of marriage, seduced the prosecutrix, and if you further find from the evidence in this case, that at said time, the prosecutrix was an unmarried female, and that she, before and up to the time of the seduction, was a chaste woman, then the jury should find the defendant guilty."
L. D. Gray, of Jasper, and C. B. Powell, of Birmingham, for appellant.
A nonexpert witness testifying to the insanity of a person must state what acts of such person he has seen and then give his opinion as to his sanity. James v. State, 193 Ala. 55, 69 So. 569, Ann. Cas. 1918B, 119; Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am. Rep. 193; Parrish v. State, 139 Ala. 16, 36 So. 1012; James v. State, 167 Ala. 14, 52 So. 840; Daggett v. Boomer, 210 Ala. 673, 99 So. 181; Woodward Iron Co. v. Spencer, 194 Ala. 285, 69 So. 902; Turner v. State, 15 Ala. App. 19, 72 So. 574; Burney v. Torrey, 100 Ala. 173, 14 So. 685, 46 Am. St. Rep. 33. The mother of a person may not testify as to the sanity of such person without detailing the facts and circumstances on which she bases her opinion. Fondren v. State, 204 Ala. 451, 86 So. 71. Seduction is the act of inducing a chaste female to depart from the paths of virtue by means of deception, flattery, art, temptation, or promise of marriage. Code 1923, § 4590; Smith v. State, 13 Ala. App. 399, 69 So. 402; Ex parte Smith, 193 Ala. 681, 69 So. 1020. Chastity of the woman at the time of seduction must be proved beyond a reasonable doubt. Charge S-5, while requiring belief beyond a reasonable doubt that the seduction was committed, does not require such belief as to the woman being unmarried and chaste. Brown v. State, 21 Ala. App. 298, 108 So. 542; Id., 214 Ala. 603, 108 So. 543; Vowell v. State, 20 Ala. App. 322, 101 So. 780. In a prosecution for seduction, fact of birth of child as result of cohabitation if within the period of normal gestation is admissible; but profert of the child over objection is error. Thorne v. State, 21 Ala. App. 57, 105 So. 709; Davis v. State, 20 Ala. App. 463, 103 So. 73. It is not every act of sexual intercourse by a man with a chaste unmarried woman which constitutes seduction. Hays v. State, 19 Ala. App. 241, 96 So. 647. Where the state relied on a promise of marriage without proof beyond a reasonable doubt that promise was made, there could be no conviction. Owens v. State, 19 Ala. App. 621, 99 So. 774.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
Charge S-5 was properly given for the state. Code 1923, § 5490. The evidence was sufficient to present a jury question, and the affirmative charge was properly refused. Hargrove v. State, 147 Ala. 97, 41 So. 972, 10 Ann. Cas. 1126, 119 Am. St. Rep. 60; Norwood Hospital v. Brown, 219 Ala. 445, 122 So. 411; Code 1923, § 5490; McDaniel v. State, 24 Ala. App. 314, 135 So. 421. Evidence that prosecutrix was weak-minded was proper as tending to show she was easily influenced, and as tending to corroborate her testimony that she had been seduced. 35 Cyc. 1346. There was no error in allowing the state to make profert of the child alleged to have been born as a result of the cohabitation. Shadix v. Brown, 216 Ala. 516, 113 So. 581; Watts v. State, 8 Ala. App. 264, 63 So. 18; Thorne v. State, 21 Ala. App. 57, 105 So. 709.
Appellant, the agent of the Booker T. Washington Burial Society, was convicted of the offense of "seducing" one of his company's unmarried female policyholders.
The "means" employed by him for the accomplishment of his diabolical purpose was, according to the theory of the state, a "promise of marriage." Code 1923, § 5490.
The evidence, as to this promise of marriage, other than the corroboratory circumstances shown, consisted of the testimony of the prosecutrix, couched in this quaint, but expressive, language, to wit: "He (appellant) told me that if I would let him have some he would take me (italics ours); that's what he said; * * * just as soon as he told me that if I would let him have it he would take me, then I let him have it, right then and there, that's the first time he had asked me for it. * * * He had intercourse with me. * * * "
It was error, and obviously prejudicial, to allow in evidence, over appellant's timely objection, etc., the statement by the witness Nancy Jones that the prosecutrix was "weak minded." This testimony was inadmissible as for that it was not preceded by testimony as "to the facts and circumstances upon which the opinion of the witness as to the sanity of the (prosecutrix) was predicated, the witness not being an expert." Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am. Rep. 193; Fondren v. State, 204 Ala. 451, 86 So. 71.
In a prosecution for the offense of seduction, before a conviction may be had, the jury must be convinced, by the evidence, beyond a reasonable doubt, of the existence of every essential element of the offense.
Two of these essential elements are, that the alleged object of the accused's lust must be (1) an "unmarried woman," and (2) "chaste" at the time of the alleged offense.
Written charge S-5, given at the request of the state, was erroneous, in that it authorized the conviction of the appellant without the necessity of the two essential elements we have named being shown by the evidence, etc., beyond a reasonable doubt.
There was no error in permitting profert of the child born to prosecutrix; the proper predicate being found in the testimony in the case. Shadix v. Brown, 216 Ala. 516, 113 So. 581.
Since the judgment must be reversed because of the errors we have hereinabove pointed out, it would seem unnecessary to discuss the other exceptions apparent. It might not be amiss to observe that we are not impressed that there is error in any of the rulings underlying same. However, they will not likely occur, in their present form, on another trial, so we do not expressly decide the questions raised.
The judgment of conviction is reversed, and the cause remanded.
Reversed and remanded.