SEDUCTION.

§ 193. General Statement. It is doubtful whether seduction was an offense before Stat. 4 & 5 Ph. & M. (1557), c. 8, §§ 1 & 2. It is defined by statute in most states. These differ considerably. Many confine the offense to seduction by promise of marriage.

Not punishable at common law: C. v. Anderson, § 6. Taking life to prevent seduction is not justifiable: P. v. Cook, § 68. Conspiracy to seduce criminal at com. mon law: Smith v. P., § 61; R. v. Delaval, § 19.

(Cal. Sup. Ct., 1898.) Capacity-Indefinite Promise-Proof of Chastity. HENSHAW, J. The defendant was convicted of the crime of seduction under promise of marriage, and appeals from the judgment, and from the order denying him a new trial. The sections of the Penal Code bearing on the offense are the following: § 268. "Every person who, under a promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character, is punishable by imprisonment in the state prison for not more than five years, or by a fine of not more than $5,000, or by both such fine and imprisonment." § 269. "Intermarriage of the parties subsequent to the commission of the offense is a bar to a prosecution for a violation of the last section, provided such marriage take place prior to the finding of an indictment, or the filing of an information charging such offense." Defendant and the girl with whose seduction he is charged were both school children, and about the same age. At the time of the seduction, and of the first act of sexual intercourse, each was about 16 years old. The girl testified that she submitted to his embraces under his promise to marry her "when he was old enough," and "when they were old enough." She says: "There was no time ever set when we were to be married, only after he became of age, and became old enough to be married, we would be. I did not know whether we would be married in one year or two years or three years or five years. I knew when he would become of age." The girl's evidence, if believed by the jury, was sufficient to support the conviction.

It is argued that a boy of 16 is incapable, under our law, of consenting to and consummating marriage; that only an unmarried male of 18 years or upwards can do so. Still further it is pointed

out that a boy of 14 or 15 years of age may be thus convicted of the seduction of a mature woman of 30 or 40; and, finally, it is insisted that the statute has in contemplation only male offenders that have passed their non-age. This argument is not without much force, yet, after having given to it the full weight to which we deem it entitled, we are nevertheless of opinion that it cannot prevail. The law is designed to protect female chastity; for, as said by Judge Cooley, "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 broken up." P. v. Brewer, 27 Mich. 134. If a previously chaste woman submits herself to the embraces of a man, under promise of marriage from him, upon which she in fact relies, the conviction, generally speaking, may not be avoided by proof that the promise was not legal and binding. The exceptions to the rule are found in those cases in which the promise itself is base and meretricious, and known to be such by the consenting woman. Thus if a married man seduces a woman under promise of marriage, she not knowing that he has a wife, his promise is illegal and invalid, but this fact does not excuse him. There was sufficient evidence to justify the finding of the jury that the complaining witness was of previous chaste character. In the first place, the law presumes a woman to be chaste until the contrary is shown. P. v. Brewer, 27 Mich. 134. In the next place, there was affirmative testimony of the girl herself to this effect. The rejected evidence by the defendant that she had had sexual intercourse with other men after the date of the alleged seduction was properly excluded, and the admitted evidence that she had permitted certain liberties to be taken with herself by her young male companions was not sufficient to show that, at the time of the seduction, she was of "unchaste character," within the meaning of the law. Chastity, as here employed, means, in the case of an unmarried female, simply that she is virgo intacta, and though one woman may permit familiarities, liberties, or even indecencies, at the thought of which another woman would blush, so long as that woman has not surrendered her virtue she is not put without the pale of the law. Crozier v. P., 1 Parker (N. Y.) 455. It is conceivable that a woman may permit or suffer many things which would be regarded as improprieties, and yet hold firmly to her virtue. As is happily said in S. v. Brinkhaus, 34 Minn. 285, 25 N. W. 642, "Although a female may from ignorance or other causes, have so low a standard of propriety as to commit or permit indelicate acts of familiarities, yet if she have enough sense of virtue that she would not surrender her person unless seduced to do so under promise of marriage she could not be said to be an unchaste woman, within the meaning of the statute. Affirmed. Temple and McFarland, JJ., concur. P. v. Kehoe, 123 Cal. 224, 55 Pac. 911, 69 Am. St. Rep. 52.

(N. Y. Ct. of App., 1897.) Conditional Promise-Age of Consent. Nelson appealed from an order of the general term affirming a judgment on conviction of seduction, on proof that when he was 20 and prosecutrix was 15 he obtained sexual intercourse with her on promise to marry her "if anything happened," the day she was 16 made an absolute promise to marry her, and subsequently had intercourse with her on several occasions, each time promising marriage if she became pregnant. VANN, J. The defendant insisted upon the trial, and insists upon this appeal, that his conviction was barred by Pen. Code, § 285. He further claims, and the point was

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distinctly made at the trial, that, if any subsequent act is relied upon to convict, it does not satisfy the statute, because at the time the prosecutrix had ceased to be chaste. The position of the people upon the subject is that all intercourse with the prosecutrix before she became 16 is conclusively presumed to have been without her consent, because by the statute then in force the age of consent was 16, and accordingly they seek to avoid the bar of the statute by basing the conviction upon the first act of intercourse that occurred after she became of that age. [Here reviewing the statutes as to rape and seduction.] None of these limitations upon the power to consent have been expressly applied by statute to the crime of seduction, and we have no power to extend them by implication to an offense that is purely statutory. Penal statutes must be strictly construed, and cannot be extended to cases that are not clearly covered thereby. An essential element in the crime of seduction is the consent of the female, founded upon a contract to marry, and plain language would be necessary to permit us to hold that the prosecutrix, although old enough to make that contract, was not old enough to consent to the defendant's advances. It is true that subsequently, and within the period of two years, there were further acts of intercourse, based on concurrent as well as prior promises to marry. We think, however, that a woman can be seduced but once, at least under the statute in question, and that the first voluntary act on her part, after she is able to understand its nature and comprehend its enormity, is the only one in which she can participate as a victim. In a case that arose in the state of Michigan, under a similar statute, it appeared that illicit intercourse was had between the parties at short intervals, and as opportunity offered; and it was held that, to warrant a conviction of seduction for the second or third or later acts, there should be clear and satisfactory proof of reformation. P. v. Clark, 33 Mich. 112. Our statute does not punish seduction generally, but only when it is committed under a promise of marriage, upon a woman of "previous chaste character." "Chaste character," thus used in the statute, does not mean reputation for chastity, but actual personal virtue. Kenyon v. P., 26 N. Y. 203, 207. For these reasons we think that the defendant was unlawfully convicted. * O'BRIEN, J. I dissent on the ground that unchastity, within the meaning of the statute, cannot be imputed to a female in consequence of intercourse involving the crime of rape. Judgment reversed. P. v. Nelson, 153 N. Y. 90, 46 N. E. 1040, 60 Am. St. Rep. 592.

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(Mich. Sup. Ct., 1902.) Previous Chaste Character-Conditional Promise. Smith was convicted of seduction; and he excepted to the refusal of the court to charge that, as complaining witness testified to intercourse with respondent prior to the act charged, she was not a person who could be seduced, and that the alleged promise

to marry if complaining witness should become pregnant was not a sufficient promise to support the charge. CARPENTER, J.

In the case of P. v. Clark, 33 Mich. 112, the lower court permitted the jury to find defendant guilty of seduction because of illicit intercourse in August, 1873, though the complaining witness testified that she had such intercourse with defendant not only in August, but on the preceding 28th of July. In deciding this case. the court said: "We do not wish to be understood as saying that, even as between the same parties, there could not be a second, or even a third, act of seduction; but, where the subsequent alleged acts follow the first so closely, they destroy the presumption of chastity which would otherwise prevail, and there must be clear and satisfactory proof that the complainant had in truth and fact reformed; otherwise there could be no seduction. And, although the female may have previously left the path of virtue on account of the seductive arts and persuasions of the accused or some other person, yet, if she has repented of that act and reformed, she may again be seduced." This decision is decisive of the case at bar. The people introduced no evidence whatever tending to show a reformation on the part of the complaining witness. There is, in our judgment, however, a more serious error in the case. All that the defendant did, according to the testimony of the complaining witness, to induce her to have illicit intercourse with him, was to promise to marry her if she became pregnant. Does sexual intercourse induced by such a promise constitute seduction? Where the woman is a young inexperienced girl the courts very properly hold that promises and means are sufficient which would not move a woman of mature years. P. v. Gibbs, 70 Mich., at page 427, 38 N. W. 257. The complaining witness in this case, however, was not a young and inexperienced girl. She was willing to lose her virtue if some provision was made to conceal its loss. New trial granted. P. v. Smith, 132

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Mich. 58, 92 N. W. 776.

FORNICATION.

$194. Defined. Fornication is illicit sexual intercourse.

Not criminal at common law R. v. Delaval, § 19: Respublica v. Roberts, § 6: Anderson v. C., § 6. That solicitation to, is not criminal: S. v. Butler, § 60. But see S. v. Avery, § 60. Conspiracy to procure it is indictable: R. v. Delaval, § 19.

UTTERING AND PUBLISHING OBSCENE OR PROFANE LAN

§ 195. In General.

GUAGE.

(Tenn. Sup. Ct., 1851.) Obscene Talk. Appellant was convicted of saying in substance that he had contracted a venereal disease

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from the wife of H. and of discoursing obscenely in public of illicit intercourse with others. * MCKINNEY, J. The books of reports, both of England and this country, abound with cases where, upon these principles of the common law, convictions have been enforced for various offenses against public morality and decency, without the aid of any statutory enactment. And surely it can be no reason for the relaxation of these salutary principles, but rather the contrary, that in this country we have no "spiritual court, to lend its aid in the suppression of the numerous offenses falling within the class now under consideration; and that such of them as cannot be reached in the mode pursued in the case before us, must "go unwhipt of justice." It would be tedious to enumerate the cases in which offenses have been held indictable as contra bonos mores-a few will suffice for the present purpose. Public drunkenness, 4 Bl. Com. 41. All indecent exposure of one's person to the public view, Id. 65, n. 25. In the case of R. v. Crunden, 2 Camb. 89, 1 Russ. on Crimes 302, it was held an indictable offense to bathe in the sea near inhabited houses, from which the person might be seen; although the houses had been recently erected, and previously thereto it had been used for persons in great numbers, to bathe at such place. And it was so held, for the reason, "that whatever place becomes the habitation of civilized men, there the laws of decency must be enforced." So it has been held by this court, that if the master of a slave in his employ, permit such slave to pass about, in view of the public, so meanly clad as not to protect the person of such slave from indecent exposure, the master is indictable for lewdness, or scandalous public indecency: 3 Humph. 203. And it may be laid down, in general terms, that all such acts and conduct as are of a nature to corrupt the public morals, or to outrage the sense of public decency, are indictable, whether committed by words or acts. These adjudications, without citing others, we think furnish analogies sufficiently strong to sustain the present prosecution. Are the outrageously vulgar and obscene words found in this record, if uttered in the ear of the public, less likely to shock any one's sense of decency, and to corrupt the morals of society-not to speak of their inevitable tendency to provoke violence and bloodshedthan the offenses charged in the several adjudicated cases above cited? It does not so appear to us. Affirmed. Bell v. S.,

1 Swan (31 Tenn.) 42, Mi. 59.

Sending obscene matter through the mail to improve public morals: U. S. v. Harmon, 37. Obscene books: R. v. Read. § 19: Dugdale v. R., § 10; R. v. Curl. § 19. Obscene pictures: C. v. Sharpless. § 19. Indecent Exposure of Person, discussed in C. v. Sharpless, § 19; R. v. Curl. § 19.

(Pa. Sup. Ct., 1893.) Cursing. Indictment for unlawful assembly and for profane cursing. The state appeals from an order quashing the count for profane cursing and swearing. GREEN, J. With an earnest desire to sustain this indictment, if possible, we find ourselves unable to do so. It cannot be sustained under the crimes