State v. Heavener , 146 S.C. 138 ( 1928 )

The defendant was tried and convicted in the Court of General Sessions of Greenville County, to which the venue had been changed from Pickens County, of the crime of seduction, under Section 382 of the Criminal Code of 1922, and sentenced to imprisonment at hard labor in the State penitentiary for a period of not less than two nor more than four years. From this judgment and sentence the defendant has appealed.

The question raised by the exceptions, omitting certain minor ones, may be thus stated:

(1) Upon a trial for seduction, under the statute, should the State be permitted to introduce the child, alleged to have been the offspring of the seduction, in evidence, as corroborating the testimony of the woman upon whom the seduction is charged?

(2) Upon such trial, should the State be permitted to introduce the child in evidence, for the purpose of establishing a resemblance of the child to the defendant as the putative father?

1. As to the Introduction of the Child as Corroborativeof the Woman's Testimony. — It appears that this Court, in earlier decisions, has inclined to hold that the profert of the child, as evidence corroborative of the woman's testimony, is permissible, although as shall be shown, the point has not squarely arisen or been decided. The authorities generally are divided upon the proposition. The statute was not passed until 1905 and the cases construing are very few. State v. Whitaker, 103 S.C. 210;87 S.E., 1001; Ann. Cas., 1918-E, 467. State v. Teal, 108 S.C. 455;95 S.E., 69. Rumbler v. Gantt, 121 S.C. 117;113 S.E., 581. State v. Heath, 133 S.C. 147;130 S.E., 513.

In the Whitaker case, the question did not arise, and was not decided. The Court simply stated that the birth of achild was a corroborative circumstance to the testimony of the woman, along with other much stronger circumstances of corroboration.

In the Teal case the child was not exhibited to the jury. The Court admitted it to show that the woman had given birth to a child, which could as easily have been established without the profert of the child. It was distinctly stated that the child was not admitted to show "similarity" (resemblance?). The Court said: "The action of the Court was clearly within the ruling in State v. Whitaker" — that is, simply to show the birth of a child.

The case of Rumler v. Gantt was a civil action for damages,per quod servitium amisit, which would of course lie, regardless of the deceit which is the basis of the statutory crime of seduction.

The case of State v. Heath was decided upon the authority of the preceding cases; other circumstances of corroboration were adverted to. The birth of the child was discussed, not the profert of it.

The statutory offense consists of two distinct elements: (1) Sexual intercourse; (2) induced by a deceitful promise of marriage. The pregnancy of the woman or the birth of a child is conclusive evidence, of course, of carnal knowledge by some man, and is admissible as simply a link in the chain of other circumstances relied upon to fasten the act upon the defendant, the act of carnal knowledge, one element in the offense; not at all of the other element, the inducement by a deceitful promise of marriage.

The fact of pregnancy is not an element in the offense. It may be as complete without as with it, though the probability of complaint when it does not follow is, in the nature of the case, extremely remote; not is it at all evidence of the deceitful promise, for it may ensue without as well as with it; the probabilities are that it follows oftener without than with.

While the pregnancy of the woman or the birth of a child is corroborative of the fact of carnal knowledge by some one, and in connection with other circumstances may fasten upon the defendant complicity in the act, there is no difficulty in establishing the fact by other evidence than the dramatic profert of the victim of unbridled passion, and, in view of the great danger of improperly stirring the natural indignation of the jury and leading it away from the vital issue in the case, the deceitful promise of marriage, upon which the coming of the child has absolutely no bearing, we think that the safer and fairer method is to establish the fact by other evidence than the profert of the child.

2. As to the Introduction of the Child for the Purpose ofEstablishing a Resemblance of the Child to the Defendant. — It is worthy of observation that the Teal case was tried by one of the ablest of the Circuit Judges of this State, the Honorable Mendel L. Smith. In the report of that case this appears, in the order of the learned Circuit Judge refusing a motion for a new trial:

"The baby was not exhibited to the jury; on the contrary, the Court only admitted that to show that she had given birth to a child; it was not to show similarity" (resemblance?).

This Court said:

"The action of the Court was clearly within the ruling in State v. Whitaker."

It would be difficult to find a clearer affirmation of the rule laid down by the Circuit Judge, that the child can be admitted only for the purpose of establishing the birth of a child. And to emphasize the principle, the Court adds:

"In the cases cited by the appellant the child was exhibited to prove that it had the features of the alleged father; and the Courts of Wisconsin held that relationship could not be shown in that way."

The issue in cases under the statute against seduction is robbing a woman of her virtue by means of deception and promise of marriage. It is not whether the defendant is the father of the child, a fact which resemblance tends to establish. The point is that the evidence of resemblance adds not a feather's weight in establishing the crux of the offense, that the defendant deceived the woman into surrendering her body to his embraces, by his promise to marry her. He might upon the stand admit that he was the father of the child as the result of his illegitimate intercourse, and yet the Court would be as far from deciding the real issue in the case with that admission as without it. That fact may be true whether the defendant received the favor of the woman under a promise of marriage or as the result of passionate contact and reckless abandon of the consequences.

The point becomes apparent in considering the distinction between seduction and bastardy. In bastardy, the paternity of the child is the issue in the case, and its resemblance to the father, as the stamp of nature, tends to establish that fact in issue. In seduction, it is a negligible factor, as it tends to prove nothing of the charge.

It is not only irrelevant to the main issue, but is of tremendous effect upon the mind of the jury which substitutes sympathy for the "one more unfortunate" for evidence of the defendant's deception.

The defendant is not under indictment for adultery, which he may admit without subjecting himself to the drastic terms of the seduction statute. It seems to me that the evidence of resemblance, of such doubtful character even of the paternity of the child and excluded by many Courts of most respectful authority, should not be received to prove the fact of paternity which itself has no probative value whatever in establishing the gravamen of the offense — deception.

The observations of the New York Court in People v.Kearney, 110 N.Y., 188; 17 N.E., 736, are strikingly apposite:

"That the evidence in this case, of the nature herein commented on, was of a very dangerous and probably highly injurious character and tendency, we think admits of no controversy. The crime is a most atrocious one, and one which must naturally tend to enlist the sympathies of all men, and, of course, of jurors, in favor of the victim. In such cases, while administering the law with perfect fairness, Courts must be extremely careful that no evidence of a tendency to excite or influence the resentment of jurors, and which does not tend to support the evidence of the prosecutrix or to connect the defendant with the commission of the crime, should be permitted to go to the jury."

I think the circumstances of this trial show the damaging possibilities of the admission of such evidence — pushing the child into the arms of the defendant, from which he was relieved only by claiming a constitutional privilege which was the subject of derisive comment, parading with dramatic effect before the jury with the infant in the arms of the State's prosecutor; commenting on its resemblance to the defendant. It is impossible to doubt that the jury was led away from the main questions in the case and to believe that the defendant's guilt of the charge was to be determined by their finding as to the paternity of the child.

Under the express terms of the statute, "no conviction shall be had under this section on the uncorroborated testimony of the woman upon whom the seduction is charged."

The testimony of the woman in this case was as to both elements, the intercourse and the deceitful promise of marriage.There must be corroboration of both: and, while the birth of the child is the weakest kind of corroboration that the defendant was a party to that act, and even if the resemblance of the child to the defendant was conclusive of his paternity, or if the defendant had admitted upon the witness stand that he was the father of the child, such evidence, so easily compatible with the contrary probability afforded not the slightest corroboration of the deceitful promise.

In the case of Russell v. State, 77 Neb. 519; 110 N W., 380; 15 Ann. Cas., 222, the Court said:

"No doubt this provision of the statute [referring to corroboration] relates both to the act of intercourse andthe promise of marriage. The existence of one of these facts does not tend to prove the existence of the other so as to furnish the corroboration required by the statute."

3. As to the conduct of the Solicitor. — The appellant complains that the Solicitor was allowed to take the baby in his arms and stand before the jury, using the child as an exhibit, upon the ground that such action was calculated to inflame the minds of the jury against the defendant. If the evidence was admissible, the use of it by the Solicitor was legitimate; such use, however, calculated as complained of, is a cogent argument against its admissibility as has been suggested.

4. As to the Fifth Exception. — It is elementary law that the exercise of a constitutional right cannot be made the subject of comment by the State's prosecuting officer. This exception is sustained.

The judgment of this Court should be that the judgment be reversed and the case remanded for a new trial.