Chester A. Boyce, Plaintiff in Error, v. The People of the State of New York, Defendants in Error

Chester A. Boyce, Plaintiff in Error, v. The People of the State of New York, Defendants in Error. 4 complaint that the charge of the court upon a criminal trial was not as cool and dispassionate as it ought to.be, if well founded, will not avail ' here. If no legal error was committed, the judgment cannot be reversed. Seduction is accomplished under promise of marriage, within the act to punish seduction as a crime (chap. Ill, Laws of 1848), when it is effected by a conditional promise that, if the female will submit to an illicit connection, the offender will marry her; and the fact that, after consenting, she endeavored to persuade him to desist, and at a time when it was too late to withdraw without his permission, she besought him to leave her, promising never to ask him to marry her if he would do so, is no excuse or palliation of the offence. Proof that, after the alleged seduction, the female has had illicit intercourse with another, is incompetent. The provision of said statute declaring that no conviction shall be had thereunder on the testimony of the female seduced, unsupported by other evidence; does not require direct or positive additional evidence of any of the material facts constituting the offence; the statute is satisfied if the prosecutrix is supported by such evidence as in the nature of things the case is susceptible of, i. e., circumstances ordinarily proved in support of an allegation of mutual promises to marry, such as attentions, correspondence, frequent visits and familiarities, and other circumstances tending to prove the material facts, and to satisfy the jury that the prosecutrix is worthy of credit. (Argued November 11, 1873; decided December 9, 1873.) The plaintiff in error was indicted, under the act making seduction a crime (chap. Ill, Laws of 1848), for seduction under promise of marriage. The promise, as sworn to by the prosecutrix, was a conditional one that the accused would marry her if she would consent to an illicit connection with him; and that, relying on the promise, she consented. Reid, that this was sufficient to bring the case within the statute. (Kenyon v. People, 26 N. Y., 203.) The prosecutrix also testified that the accused, to induce her to consent to his proposal, stated in substance that he never would marry a girl unless he was satisfied she was a virgin, which he could ascertain only by her assenting to his proposition. But upon her expressing apprehension that he would leave her if she yielded to him, he assured her, in the strongest terms, that he would marry her. The prisoner’s counsel asked the court to charge in substance that, if the promise to marry was not an existing one, but an inchoate proposition depending upon the result of illicit intercourse. as furnishing evidence of virtue to complete the mutuality of the contract, the case was not within the statute. The court declined so to charge. Reid (Chubch, Ch. J., and Sapallo, J., dissenting), no error, as there was no just foundation in the evidence to claim that the promise was to marry only in case the accused should be satisfied that the prosecutrix was a virgin; that it was to the promise and not to any test of virginity that she gave her consent. The time of the alleged seduction was February 5, 1871, followed by subsequent intercourse down to August. It was proved, without objection, that the prosecutrix was delivered of a child February 10, 1872. The prosecution disclaimed any reliance upon this fact as corroborating the evidence of the prosecutrix; the court' held the evidence 'immaterial The prisoner’s counsel offered evidence that between the 5th February and the 1st May, 1871, the prosecutrix had carnal connection with another man, which was excluded. Reid (Church, Oh. J., andRAPAnno, J., dissenting), no error; that pregnancy was not essential to the consummation of the offence charged; that the evidence rejected could only have been material to obviate, the effect of that fact as corroborative evidence, and, as that was expressly disavowed, the rejection was proper. Also, that the rejection could be sustained upon the ground that the offer was not limited to show any illicit intercourse at a time when the child could have been begotten, and was in effect simply to show that after the alleged seduction she had been guilty of fornication with another person, which was clearly incompetent. The prisoner’s counsel then asked to have the evidence, as to the birth of the child, stricken out, which was denied. Reid, no error; that as it was received without objection, and the right to use it in support of the charge was disclaimed, there was no strict right to have it formally stricken out. The prisoner’s counsel also claimed that the prosecutrix was not supported by other evidence, as required by the statute. Other evidence- was given that she was alone with the prisoner at the time she charged the offence was committed, also as to her condition and appearance after it, as to his attentions and familiarities, and as to his solicitude during her sickness immediately following the alleged offence. Held, that the statute did not require direct or positive corroborative evidence as to any of the material facts, but rather such evidence as has been ordinarily required in corroboration of the evidence of an accomplice when called as' a witness against his confedérates in crime, or circumstances usually relied upon as tending to prove the material facts, and which from the nature of the case are susceptible of being proved, to satisfy the jury that the principal witness is worthy of credit; that, from the peculiar character of the offence, circumstantial evidence only can, save in rare instances, be adduced, other than from the parties concerned, and to require more would he to render the statute mere brutem fvlmm / and that the corroborative evidence was sufficient to meet the requirements of the statute. It was also claimed by the prisoner’s counsel that the charge of the court was an appeal to the passions and prejudices of the jury, and not cool and dispassionate as it should be. Held, that if the claim was well founded it could not avail here; that, if no legal error was committed in the submission of the cause, the judgment could not be reversed, and that legal error could not be predicated upon comments of the court upon the evidence. Nathaniel O. Moak for the plaintiff in error. J. O. Ormsby for the defendants in error. [MAJORITY — Allen, J.,] Allen, J., reads for affirmance; all concur, except Chuboh, Oh. J., and Rapallo, J., dissenting upon grounds above stated. Judgment affirmed.