offer. It cannot be proved that he had previously declared that he would never live with her, or that he would leave her at the first opportunity. 68 69 The state must prove that the woman was unmarried. This will not be presumed.. She may, and perhaps should, testify to the facts, or, if she is silent, it may be inferred from her extreme youth, the fact that she resided in her father's house under her maiden name and received the attentions of the accused and of other men, and the surrounding circumstances and relations of the parties, all of which are relevant. 70 § 392. The chastity of the female-What constitutes chastity and how it may be proved.-Seduction is usually a statutory crime. It is often provided by statute that the female must have been chaste or virtuous, or of chaste character or repute previous to the intercourse with the accused. It is for the court to construe the meaning of these words in a statute." As a matter of law, every woman who has never been married and who is a virgin is chaste. The test is usually illicit sexual intercourse."2 Whether the female is a virgin is always a question of fact for the jury. The evidence upon this question need not be direct. Positive evidence "Where the statute merely requires that the female shall be of "good repute," or "of chaste character," some of the cases hold that proof of actual physical chastity is not necessary. State v. Sharp, 132 Mo. 165, 33 S. W. 795; Kerr v. United States, 7 Ind. T. 486, 104 S. W. 809; Woodard v. State, 5 Ga. App. 447, 63 S. E. 573, in which it was said the test of virtue within the seduction statute is whether the female had ever had at the time of the seduction unlawful sexual intercourse, not purity of mind or heart, but actual physical purity of person. Contra, Mills v. Commonwealth, 93 Va. 815, 22 S. E. 863. See Elliott Evidence, § 3145. 70a Walton v. State, 71 Ark. 398, 75 53 S. E. 820. S. W. I. of an act of sexual intercourse with a man is of course conclusive evidence of unchastity.73 Physical unchastity may also be inferred from proof of indecent familiarities with men, or indecent language and conduct, and, perhaps, from mere indiscretion and improper associations. All the previous acts, conduct and conversations of the woman are received to prove or disprove her chastity, if actual physical unchastity is not proved.75 And where actual chastity of the female is admitted, the moral and mental chastity of the female may be relevant to enable the jury to determine whether the woman, though physically chaste, was seduced, or whether the intercourse was indulged in by her for the purpose of gratifying her lascivious desires.76 The facts that the prosecutrix lived with her parents, relatives or guardians," moved in the society of respectable people, and was reputed to be chaste;78 went to church and to social gatherings, are always relevant to prove her actual chastity. To prove that the prosecutrix was unchaste at the time of her alleged seduction her previous reputation as an unchaste woman is admissible. The evidence must be strictly Simmons v. State, 54 Tex. Cr. 242; Jeter v. State, 52 Tex. Cr. 212, 619, 114 S. W. 841. 106 S. W. 371. Specific instances to prove character for chastity, see 14 L. R. A. (N. S.) 727, note. 192, 289, State, 85 "Wood v. State, 48 Ga. 299, 15 Am. 664; O'Neill v. Ga. 383, 408, 11 S. E. 856; State v. Bell, 49 Iowa 440, 443; State v. Wheeler, 94 Mo. 252, 7 S. W. 103; Crozier v. State, 1 Park. Cr. (N. Y.) 453, 457; Barnes v. State, 37 Tex. Cr. 320, 39 S. W. 684; Kenyon v. People, 26 N. Y. 203, 207, 84 Am. Dec. 177; People v. Brewer, 27 Mich. 134, 135; Powell v. State (Miss., 1896), 20 So. 4; People v. Nelson, 153 N. Y. 90, 46 N. E. 1040, 60 Am. St. 592; Simmons v. State, 54 Tex. Cr. 619, 114 S. W. 841; State v. Whitley, 141 N. Car. 823, 53 S. E. 820. Compare State v. Hummer, 128 Iowa 505, 104 N. W. 722. 70 O'Neill v. State, 85 Ga. 383, 409, II S. E. 856; Smith v. State, 108 Ala. I, 19 So. 306, 54 Am. St. 140; State v. Aker (Wash., 1909), 103 Pac. 420. There can be no seduction, though the woman be a virgin, unless she has been actually seduced; on that question, her moral qualities, as well as her physical chastity, are relevant. 77 People v. Roderigas, 49 Cal. 9. The head of a family of which the prosecuting witness was a member for three months may state his opinion as to her previous chaste character based on his acquaintance with her and on what he has seen of her conduct. People v. Wade, 118 Cal. 672, 50 Pac. 841. 78 Vandiveer, In re, 4 Cal. App. 650, 88 Pac. 993, under Penal Code, § 268. 80 confined to her reputation for morality in sexual relations," and must also be limited to her reputation for chastity or unchastity before the seduction. Derogatory rumors are sometimes received, though a witness who has not testified on his direct examination to the reputation for chastity of the prosecutrix cannot be cross-examined as to derogatory reports. It may always be shown that a witness had never heard her reputation for chastity called in question.82 The woman may testify to her own chastity,3 and may be cross-examined as to specific unchaste acts and conversations with men other than the defendant, whose names are given or whose names are unknown. She may refuse to answer where the answer would incriminate her. Actual unchastity, i. e., criminal intimacy and lascivious conduct with other men existing after the date of the alleged seduction, is excluded as proof of the fact that prosecutrix was unchaste by the probability that it resulted from it.85 Where the evidence shows the actual physical unchastity of the female it may be proved that she had reformed and was leading a chaste life at the date of the seduction. A presumption of reform may arise where a reasonable time has elapsed since the 7 State v. Hummer, 128 Iowa 505, 104 N. W. 722. See Elliott Evidence, § 3146. 80 86 Bracken v. State, 111 Ala. 68, 20 So. 636, 56 Am. St. 23; State v. Wells, 48 Iowa 671; Slocum v. Peo People v. Wade, 118 Cal. 672, 50 ple, 90 Ill. 274; Mann v. State, 34 Pac. 841. Ga. 1; Boyce v. People, 55 N. Y. 644. State v. Whitley, 141 N. Car. 823, 646; Russell v. State, 77 Neb. 519. 53 S. E. 820. 82 Zabriskie v. State, 43 N. J. L. 640, 644, 39 Am. 610; State v. Bryan, 34 Kan. 63, 72, 8 Pac. 260; State v. Deitrick, 51 Iowa 467, 469, 1 N. W. 732; Night v. State, 147 Ala. 93, 41 So. 850, 119 Am. St. 58. Evidence of reputation for chastity must refer to a time subsequent to the seduction. People v. Brewer, 27 Mich. 134, 135. 83 110 N. W. 380; State v. Atterbury, 59 Kan. 237, 52 Pac. 451. Contra, Nolan v. State, 48 Tex. Cr. 436, 88 S. W. 242. Kenyon v. People, 26 N. Y. 203, cution. State v. Bennett, 137 Iowa 209, 84 Am. Dec. 177. 427, 110 N. W. 150. See Elliott Evi State v. Sutherland, 30 Iowa 570. dence, § 3147. intercourse but when it was frequently repeated at short intervals the burden of proving reformation is on the prosecutrix.87 $393. The presumption of chastity.-Two views are held upon the question whether any presumption of law exists as to the chastity of the female in a trial for seduction. Some of the cases, basing their reasoning upon the presumption of the prisoner's innocence, deny the existence of any presumption of chastity and require the state to produce some evidence that the prosecutrix is chaste.88 Other cases hold that as chastity is the general rule in modern society, and a want of it the exception, the prosecutrix starts with a presumption of chastity in her favor.8" "People v. Clark, 33 Mich. 112, 117; People v. Millspaugh, 11 Mich. 278, 282. Where a woman previously unchaste reforms and maintains her personal chastity for such a time that the jury could see that she was actually chaste at the time of the alleged seduction, then if accused obtained carnal knowledge of her person by the false express promise of marriage he should be convicted, and if it appeared that the woman at the time of the seduction was not possessed of actual personal chastity he should be acquitted. Cooper v. State, 86 Ark. 30, 109 S. W. 1023. Defenses in seduction, see Elliott Evidence, § 3153 83 'People v. Squires, 49 Mich. 487, 489, 13 N. W. 828; Zabriskie v. State, 43 N. J. L. 640, 644, 39 Am. 610; State v. Wenz, 41 Minn. 196, 197, 42 N. W. 933; People v. Wallace, 109 Cal. 611, 42 Pac. 159; West v. State, 1 Wis. 209, 217, 218; Commonwealth v. Whittaker, 131 Mass. 224, 225; Oliver v. Commonwealth, 101 Fa. St. 215, 218, 47 Am. 704; State v. McCaskey, 104 Mo. 644, 16 S. W. 511; Underhill on Ev., 234; Walton v. 43-UNDERHILL CRIM. EV. State, 71 Ark. 398, 75 S. W. 1. On a trial for seduction, the previous want of chastity of the prosecutrix is defensive matter, and accused has the burden of proving it by a preponderance of the evidence, and where there is a reasonable doubt of his guilt on the whole case he is entitled to the benefit of it, but it is not proper to charge that the jury must be convinced beyond a reasonable doubt of the previous chastity of the prosecutrix to warrant a conviction. Wilhite v. State, 84 Ark. 67, 104 S. W. 531. Tedford v. United States, 7 Ind. Terr. 254, 104 S. W. 608; Woodard v. State, 5 Ga. App. 447, 63 S. E. 573; Weaver v. State, 142 Ala. 33, 39 So. 341; Kerr v. United States, 7 Ind. Terr. 486, 104 S. W. 809; Norton v. State, 72 Miss. 128, 16 So. 264, 18 So. 916, 48 Am. St. 538; State v. Bauerkemper, 95 Iowa 562, 64 N. W. 609; Mills v. Commonwealth, 93 Va. 815, 22 S. E. 863; Crozier v. People, I Park. Cr. (N. Y.) 453, 457; Slocum v. People, 90 Ill. 274, 281; State v. Higdon, 32 Iowa 262, 264; Wilson v. State, 73 Ala. 527, 533, 535; Fer § 394. Defilement of female ward or servant.-A statute which provides punishment for any guardian of a female under the age of eighteen years, or any person to whose care or protection such female shall have been confided, who shall defile her while in his care, custody or employment is sustained by proof that a person in whose family the female was employed as a servant had defiled her when the evidence showed that he had promised the girl's father to watch over and care for her." It is not necessary to prove an express agreement confiding the girl to the defendant's care. The character of the woman is immaterial. Hence her acts of illicit sexual intercourse with others cannot be shown," but the continuation of the intercourse with the defendant after the termination of the employment is always relevant.93 91 § 395. Incest defined.-"Incest, where statutes have not modified its meaning, is sexual commerce, either habitual or in a single guson v. State, 71 Miss. 805, 808, 15 So. 66, 42 Am. St. 492. "The question is not 'Are the majority of women chaste?' but rather was this woman chaste who admits she consented to illicit intercourse and who carries with her the bastard which is the result and evidence of her shame? The presumption of chastity in such a case not only encounters the presumption of the prisoner's innocence, but, as it must be universally applicable, raises the future presumption that all women who bear illegitimate children, and seek the punishment of their seducers, were absolutely chaste and pure before their seduction. This is manifestly untrue and absurd." Zabriskie v. State, 43 N. J. L. 640, 644, 39 Am. 610; State v. McClintic, 73 Iowa 663, 667, 35 N. W. 696; State v. Hemm, 82 Iowa 609, 612, 48 N. W. 971; People v. Brewer, 27 Mich. 134, 138; State v. Gates, 27 Minn. 52, 6 N. W. 404; Carpenter v. People, 8 Barb. (N. Y.) 603; State v. Shean, 32 Iowa 88, 90, 91; State v. Carron, 18 Iowa 372, 375, 87 Am. Dec. 401n: 90 State v. Young, 99 Mo. 284, 288, 289, 12 S. W. 642; State v. Strattman, 100 Mo. 540, 550, 13 S. W. 814; State v. Terry, 106 Mo. 209, 215, 17 S. W. 288. The statute applies to the case of a female pupil under 18 years of age who is seduced by her teacher and the fact that the pupil's mother knew of the illicit relations of her daughter with the teacher and consented thereto is no defense. State v. Oakes, 202 Mo. 86, 100 S. W. 434, 119 Am. St. 792. 1 State v. Sibley, 131 Mo. 519, 33 S. W. 167; State v. Hill, 134 Mo. 663. 36 S. W. 223. 92 State v. Rogers, 108 Mo. 202, 204. 18 S. W. 976; State v. Sibley, 131 Mo. 519, 33 S. W. 167. 93 State v. Young, 99 Mo. 284, 290, 12 S. W. 642; State v. McClain, 137 Mo. 307, 38 S. W. 906. |